Can European human rights instruments limit the power of the national state to punish? A tale of two Europes
| Author | Gaëtan Cliquennois,Sonja Snacken,Dirk Van Zyl Smit |
| DOI | 10.1177/1477370820980354 |
| Published date | 01 January 2021 |
| Date | 01 January 2021 |
https://doi.org/10.1177/1477370820980354
European Journal of Criminology
2021, Vol. 18(1) 11 –32
© The Author(s) 2020
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DOI: 10.1177/1477370820980354
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Can European human rights
instruments limit the power
of the national state to punish?
A tale of two Europes
Gaëtan Cliquennois
University of Nantes, France
Sonja Snacken
Vrije Universiteit Brussel, Belgium
Dirk Van Zyl Smit
University of Nottingham, UK
Abstract
The power to punish is traditionally seen as an essential prerogative of the national state. Over
the last three decades, judicial and standard-setting bodies of the Council of Europe (CoE) have
sought increasingly, at a regional level, to monitor and control the power of European states to
punish. In parallel, the European Union (EU) has become an increasingly important penal actor,
fostering a common approach to transnational forms of criminality, as well as seeking judicial
cooperation between EU member states in order to deal with a wider range of crimes. Little
attention has been paid, however, to the interactions, coherence or discrepancies between the
CoE’s and the EU’s bodies and policies. Therefore, we analyse the inter-relationship of the CoE
and EU penal and prison policies. We focus on the instruments that can be used to limit European
states’ powers to punish, but also, particularly in the case of the EU, on countervailing forces
resulting from policies conducted in the field of terrorism and from countries hit by populism.
Finally, we develop the concept of ‘two Europes’, which encapsulates not only the discrepancies
between the approaches adopted by the CoE and the EU towards human rights moderation of
European prison and penal policies but also wider penal policy differences between a modern,
liberal democratic, humanistic Europe and a nationalistic Europe conducting harsh penal policies,
Corresponding author:
Gaëtan Cliquennois, Gaëtan Cliquennois, CNRS/University of Nantes, Law and Social Change, Chemin de la
Censive du Tertre 44313 Nantes, France.
Email: Gaetan.Cliquennois@univ-nantes.fr
980354EUC0010.1177/1477370820980354European Journal of CriminologyCliquennois et al.
research-article2020
Special Issue: Human rights, prisons and penal policies
12 European Journal of Criminology 18(1)
increasing its margin of appreciation and using its sovereignty in order to avoid implementing such
blurred policies.
Keywords
Council of Europe, European Union, penal and prison policies, immigration policy, political
backlash
Introduction
The power of a nation state to inflict punishment has traditionally been regarded as
uncontroversial and as an essential prerogative of the state. Over the last three decades,
however, the regional judicial, monitoring and standard-setting bodies of the Council of
Europe (CoE) – the European Court of Human Rights (ECtHR), the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
and the Committee of Ministers (CM) – have increasingly controlled and monitored this
power to punish (Cliquennois and Snacken, 2018).
In parallel, the European Union (EU) has become an increasingly important penal
actor, fostering a common approach to transnational forms of criminality, as well as
seeking to develop mutual trust and judicial cooperation between EU member states in
order to deal with a wider range of crimes. The Court of Justice of the European Union
(CJEU) interprets and enforces EU law, including the 2000 EU Charter of Fundamental
Rights, and therefore also acts as a ‘fundamental rights’ court, which impacts on national
penal policies.
Although the power and control of the CoE over penal policies and national powers
to punish have grown, large-scale analyses of the substantive impact of the CoE on mem-
ber states’ national prison and penal policies are still rare. Those that have been under-
taken show examples of both compliance and resistance (Cliquennois and de Suremain,
2018; Cliquennois and Snacken, 2018; Daems, 2017; Daems and Robert, 2017; Karstedt,
2013; Morgan and Evans, 1999; Whitman, 2003). However, populist reactions in East
European and other countries have largely been ignored in the literature and need further
investigation.
Little academic attention has been also paid to the discrepancies between the policies
of the CoE and the EU and their varying impacts on national penal policies. Our contri-
bution to the relatively disconnected literatures on punishment and European control
over penal policies is to show that the impact of the CoE and the EU has led not only to
increased penal moderation but also to growing political resistance to European support
for restraint in the national use of penal power. We demonstrate that such resistance is
facilitated by discrepancies between the CoE and the EU in their approach to penal poli-
cies: the EU is less focused on human rights than the CoE, and more concerned with
penal harmonization, citizens’ rights, immigration and counter-terrorist policies. This is
why we develop the concept of two Europes to analyse the main evolutions of penal and
prison policies in Europe. The concept of two Europes refers to two main dimensions: it
encapsulates the discrepancies between the penal approaches adopted not only by the
CoE and the EU but also by European countries. The latter are divided between European
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