Prospects and problems for European legal cooperation concerning prisoners
| Author | Gerard Conway |
| DOI | 10.1177/2066220318792312 |
| Published date | 01 August 2018 |
| Date | 01 August 2018 |
| Subject Matter | Original Articles |
https://doi.org/10.1177/2066220318792312
European Journal of Probation
2018, Vol. 10(2) 136 –159
© The Author(s) 2018
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DOI: 10.1177/2066220318792312
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Prospects and problems for
European legal cooperation
concerning prisoners
Gerard Conway
Brunel University London, UK
Abstract
Formal legal cooperation in matters relating to prisoners has existed at European level
for over 50 years. With the development of an European Union (EU) competence in
criminal law from the Treaty of Maastricht 1992 onwards, now both the Council of
Europe and the EU have adopted legal instruments in this sphere. This paper analsyses
the scope and rationale of transnational European cooperation relating to prisoners. It
first outlines Council of Europe instruments, including the relevance of the European
Convention of Human Rights, conventions specifically on prisoners, and soft law. It
then examines the more recent EU instruments, following which the relevance of
constitutional principles and the prospects and potential difficulties of European
cooperation are analysed. It concludes that cooperation can best succeed through
a specification of minimum standards and greater coordination between Council of
Europe and EU action, along with greater recognition of its specifically penal context.
Keywords
Criminal law, Council of Europe, European law, European Union, penal cooperation,
sentencing
Introduction
The legal framework of cooperation between States in Europe in matters relating to
prison law, understood here to include probation, is relatively complex due to the exist-
ence of two parallel avenues of cooperation: the Council of Europe and the European
Union (EU). Cooperation between States and comparative study of prison policy are not
new (Van Zyl Smit and Snacken, 2009: ch. 1). The present study focuses on European
developments, rather than the broader international context (on which, see United
Corresponding author:
Gerard Conway, Brunel University, Brunel University London, UK.
Email: gerard.conway@brunel.ac.uk; doi77147714@neomailbox.ch
792312EJP0010.1177/2066220318792312European Journal of ProbationConway
2018
Original Article
Conway 137
Nations Office on Drugs and Crime, 2012). Legal cooperation in Europe is more intense
than generally in the world, and so it may provide an instructive example of problems
and the potential in this area. This article critically examines the framework of legal
cooperation and looks at the main legal instruments adopted to date by both the Council
of Europe and EU and their interaction. The Council of Europe has been the prime mover
in this sphere, but with a growing EU competence in the area of criminal justice, espe-
cially since the Lisbon Treaty, the potential for overlap with the Council of Europe is
substantial. The article concludes that a rationalisation of the parallel processes of coop-
eration could achieve greater efficiency and transparency and be more consistent with
the normative requirements of criminal justice.
Compared with the rest of the body of international law, the EU has some character-
istics that cumulatively make it distinctive. The essential difference is the degree of sov-
ereignty transferred from Member States individually to centralised EU institutions and
its greater enforcement powers relative to the Council of Europe. This is generally
described as ‘supranational’ compared with the ‘intergovernmentalism’ of international
law. The following summarises briefly ‘supranationalism’:
(Qualified) majority voting amongst Member State representatives in adopting
laws, as opposed to the right to opt-out of any law-making process.
A directly elected international body, that is, the European Parliament, has a co-
equal in passing most EU laws.
A stronger impact on national law in that:
(a) in case of conflict with national law, EU law prevails in national courts;
(b) individuals are allowed to invoke EU law in a national court;
(c) most EU laws take effect in national law without the need for national parliamen-
tary incorporation (the doctrine of direct effect).
In contrast to the EU, the Council of Europe is intergovernmental, rendering it a much
more voluntary type of cooperation. Member States of the Council of Europe are free to
opt in or out of individual Council of Europe legal instruments, such as the European
Convention on Human Rights (ECHR) (European Treaty Series, no. 05),1 while there is
a minimum enforcement or supervisory machinery of periodic reviews by Council of
Europe committees, apart from the jurisdiction of the European Court of Human Rights
under Part II of the ECHR. This contrasts to the intrusive enforcement of EU law in
national law, through the operation of the EU doctrines of direct effect and supremacy
and the procedure under Article 267 of the Treaty in the Functioning of the European
Union (TFEU) of references from national courts for a preliminary ruling by the European
Court of Justice (ECJ), as well as enforcement actions by the European Commission
under Articles 258 and 260 TFEU. Nearly all European States are members of the
Council of Europe, with the EU constituting an inner core of much more intense integra-
tion amongst its (current) 28 Member States.
This article first outlines and compares the legal instruments of the Council of Europe
and EU, noting the overlap and differences between them, from a juridical perspective.
The second part of the paper adopts a normative approach, examining the relevance of
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