2. H umAn R IgHts s tAndARds As peRspectIve foR compARIng non - custodIAl
2.3. m inimum human rights standards for ambulant sanCtions
As shown above, ambulant sanctions have to be judged by international human rights standards. While international standards for prisons have already been well-established and are increasingly attempted to be enforced by diverse control mechanisms, the existing standards for the execution of ambulant sanction are little known outside of highly specialised expert circles.57 What is more, they were called into being much later than corresponding standards for prisons. While the United Nations developed Standard Minimum Rules for prisons back in 1955, the United Nations Standard Minimum Rules for Non-custodial Measures (Tokyo Rules) were not adopted until 1990. The same applies to the European context: While the European Council passed the European Prison Rules in 1973, following those standards developed by the UN, the European Rules on Community Sanctions and Measures were created as
56 Report on the Implementation of Framework Decisions COM(2014) 57, p. 7 f.
57 For Germany, see the extensive presentation of international standards for ambulant sanctions and measures, including diverse examples of application on a global scale, in Morgenstern 2002.
late as 1992. Measured by the degree of familiarity of the minimum standards on ambulant sanctions, however, the passed time since their adoption seems quite long.
In 2010, they were supplemented by the Council of Europe Probation Rules.58
Taking a look at these sets of rules reveals that – aside from extending ambulant sanctions in order to reduce the use of custodial sanctions – it is necessary to develop minimum standards for the rights of those subjected to ambulant sanctions as well. Even though these regulations solely represent soft law, the (generally increasing) significance of such standards makes clear that governments can be obliged to report on their implementation and that they might find their way into both national legislation and case-law. In Germany, for example, the European Prison Rules were directly addressed by the Federal Constitutional Court in its case-law on the conditions of German prisons. The European Prison Rules (EPR), initially passed by the Committee of Ministers in 1973 and renewed in 2006, play a noticeable role in German prison law nowadays. Similar to other international rules and guidelines, the Federal Constitutional Court attributes an indicative effect to the European Prison Rules as well.59 Due to the court’s decision of 2006, the regional parliaments took the EPR into account while designing their different state prison acts.60 However, they did so in referring to them rather in general, without special influence of the EPR to be recognisable.61 Nevertheless, the growing reception of the EPR in Germany is being regarded as an expression of an increased awareness of human rights in the penitentiary system by some experts.62
In Belgium, the federal government passed a law concerning the internal legal position of detainees on 12 January 2005: the Act on Principles of Prison Administration and Prisoners’ Legal Status (commonly referred to as the “Dupont Act” 15).63 This law is considered to be a “milestone” in the way sentences are executed in Belgian prisons. Until the adoption of this law, most aspects of life in detention, including prisons, were left to the discretion of the prison authorities. The fundamental principles and the detailed provisions of this law determine the rights and duties of the detainees and lay down rules governing prison administration. The law was echoing the recommendations of the CPT and written in the spirit of the European Prison Rules.
58 CM Rec (2010)1
59 Federal Constitutional Court, decisions of 31 May 2006, – 2 BvR 1673/04 and 2 BvR 2402/04 and of 17 October 2012, 2 BvR 736/11.
60 Feest/Lesting 2012, Vor § 1, marg. no. 10.
61 N. Nestler (2012): Der Musterentwurf für ein Landesstrafvollzugsgesetz als Konsequenz des Phlegmas um die Europäischen Strafvollzugsgrundsätze?, in: Neue Kriminalpolitik 87-91.
62 F. Dünkel (2010), Die Europäischen Strafvollzugsgrundsätze von 2006, in: H. Preusker, B.
Maelicke & C. Flügge (eds.): Das Gefängnis als Risiko-Unternehmen, Baden-Baden, pp. 202-215 (202).
63 Loi de principes du 12 janvier 2005 concernant l'administration pénitentiaire ainsi que le statut juridique des détenus. http://www.ejustice.just.fgov.be/cgi_loi/change_lg.pl?language=fr&la=F&cn
=2005011239&table_name=loi
Human Rights Standards
30Corresponding examples with respect to the European Rules on Community Sanctions and Measures or Probation Rules cannot be found. But these rules legally bind the EU Member States in the same way the European Prison Rules do. The need to bring these rules to light in all of the Member States can be met by using them as an underlying concept for comparisons between the law and legal practice of these states in and independent of a connection with the Framework Decisions and respective transposition laws.
Minimum standards for ambulant sanctions result from a human rights perspective that – in turn – has to rest on both the highlighted common core beliefs of the European Union and the basic principles formulated in international regulations.
In connection with the given subject of sanctions, the respect for human dignity plays a decisive role. The latter calls for a humane and fair treatment of those subjected to penal sanctions and the safeguarding of their (social) human rights, including the right to social inclusion and rehabilitation.64 There are various human rights guarantees from the European Convention on Human Rights that might be interfered with here.65 To begin with, Art. 8 ECHR, the right to respect for private and family life, may be violated by electronic monitoring or by the duty to get listed in a register for sexual offenders. Art. 6, the right to a fair trial, may be infringed by the revocation of the suspension of a prison term or other measures on grounds of the establishment of violations against instructions. The right to freedom, as mentioned in Art. 5, may also be breached by such a revocation or by the state’s refusal to grant ambulant alternatives. Art. 4 of the ECHR furthermore provides for the prohibition of forced labour which is inadmissibly disregarded in cases where punishment is combined with the duty to work. Even the prohibition of torture and degrading or inhuman treatment and punishment, as formulated in Art. 3 of the ECHR, could be relevant in the case of ambulant sanctions. Although the number of court rulings on ambulant sanctions by the European Court of Human Rights is still limited66 – the same applies to decisions on conditions of imprisonment67 which are rather of recent date. But the ECtHR has shown a tendency to increasingly deal with such issues.68
Moreover, the European Rules on Community Sanctions and Measures (ERCSM) are particularly significant in view of existing international human rights standards for ambulant sanctions.69 Concluded by the Council of Europe, the ERCSM are meant to be taken as a central starting point in order to create legal safeguards for individuals subjected to ambulant sanctions and to promote guidelines for best practices (in this sense), thereby taking the same line as this project. Even though
64 Morgenstern/Larrauri 2013, p. 126.
65 Exemplary enumeration in allusion to Morgenstern/Larrauri 2013, p. 128.
66 For examples see Morgenstern/Larrauri 2013, p. 128, Fn. 1.
67 See ECtHR, Hellig v. Germany, no. 20999/05, 7 July 2011 (prisoner kept naked in a security cell);
ECtHR, Rangelov v. Germany, no. 5123/07, 22 March 2012 (resocialisation for foreign prisoners).
68 Coming to the same conclusion: Morgenstern/Larrauri 2013, p. 128.
69 Committee of Ministers of the Council of Europe: Recommendation R (92) 16.
the European Probation Rules deal in part with the same subject, they were not intended to substitute the ERSM, but to be an addition to them. In the light of the enforcement of civil society commitment in the field of alternative sanctions, as aimed for by this study, the ERCSM play an important role. They have not only been agreed upon by all Member States of the Council but have been actively promoted by civil society actors. It were non-governmental organisations – active in the field of ambulant sanctions – that inspired and supported the development of these standards, amongst others the European Probation Organisation (CEP). On the basis of this example, it has been discussed whether an involvement of such multinational advisory bodies leads to an increased legitimacy of rules which are adopted in this way.70
70 For further references see Morgenstern & Larrauri 2013, p. 129.