Remedies for breaches of prisoners’ rights in the European Prison Rules
| Published date | 01 December 2020 |
| Date | 01 December 2020 |
| DOI | http://doi.org/10.1177/2032284420963891 |
| Subject Matter | Articles |
Article
Remedies for breaches of
prisoners’ rights in the
European Prison Rules
Kresimir Kamber
European Court of Human Rights, France
Faculty of Law and Criminology, Ghent University, Belgium
Abstract
This article looks into the architecture of remedies for breaches of the right of prisoners not to be
subjected to inadequate conditions of detention under the revised 2020 European Prison Rules
(EPR). It seeks to expound the consistency and rationality of the relevant provisions of the 2020
EPR from the perspective of relevant principles and specific prescriptions of European prison law.
For the purpose of the present article, the term ‘European prison law’ encompasses rules and
standards set out in the case law of the European Court of Human Rights, practice of the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
and the provisions of the EPR. The article finds that, in this context, there is sufficient coherence in
the relevant principles of European prison law – faithfully codified in the 2020 EPR – providing clear
guidance to European States on how to put in place a system of remedies for breaches of prisoners’
rights and how to ensure its effective operation in practice.
Keywords
Prisoners’ rights, conditions of detention, effectiv e remedy, European Prison Rules, European
Convention on Human Rights, European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment
Introduction
The European Prison Rules (EPR) inscribe to a list of international standard-setting mechanisms
and reflect a European perspective on the matter of proper management of prisons and just and fair
treatment of prisoners.
1
Formally adopted as a recommendation – and thus an instrument of ‘soft
Corresponding author:
Kresimir Kamber, European Court of Human Rights, All´
ee des Droits de l’Homme, Strasbourg 67075, France; Ghent
University, Faculty of Law and Criminology, Campus Aula, Voldersstraat 3, 9000 Gent, Belgium
E-mail: Kresimir.Kamber@Ugent.be
1. The concrete progress in the European standard-setting related to prisoners’ rights first started with the adoption of the
1973 Resolution (73)5 of the Committee of Ministers on the European Standard Minimum Rules for the Treatment of
New Journal of European Criminal Law
2020, Vol. 11(4) 467–488
ªThe Author(s) 2020
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DOI: 10.1177/2032284420963891
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law’ – the EPR reflect the state of not only legal but also political, cultural and social assumptions
about the prison and prisoners’ rights in Europe.
2
Moreover, they have received significant atten-
tion and judicial recognition in the case law of the European Court of Human Rights (the Court)
and represent an important source of reference standards for the monitoring work of the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(CPT).
The 2006 version of theEPR (the 2006 EPR) – which remainedin force for some fourteenyears –
was adopted as an appendix to the 2006 Council of Europe Committee of Ministers Recommenda-
tion Rec(2006)2 on the EPR. The Committee of Ministers also adopted an official commentary
accompanying the EPR. Among other substantive provisions on the management of prisons and
treatmentof prisoners, the 2006 EPR containedan important provision on internal‘housekeeping’. In
particular,r 108 – which aimed at keeping pace with penological and socialdevelopments in the field
of prison management and treatment of prisoners – required a regular update of the Rules.
3
Since 2006, there have been many changes in the field of prison management and treatment of
prisoners, which created an impression that the 2006 EPR were in some parts outdated. In partic-
ular, the Court has increasingly started dealing with cases concerning conditions of detention and
various aspects of imprisonment, thereby developing its ‘penological case law’. The CPT has also
further developed various standards related to the treatment of prisoners. The Council of Europe in
general has been active in adopting recommendations on various specific issues of imprisonment
and the general issues of treatment of offenders, some of which will be discussed below. At the
United Nations (UN) level, the UN Rules for the Treatment of Women Prisoners and Non-
Custodial Sanctions for Women Offenders (the Bangkok Rules) were adopted,
4
and the 1955
United Nations Standard Minimum Rules for the Treatment of Prisoners (UNSMR) were updated
and revised
5
by the adoption of the Nelson Mandela Rules (NMR).
6
In view of these developments, the European Committee on Crime Problems (CDPC) first
entrusted the Council for Penological Co-operation (PC-CP) to carry out a revision and update
of the Commentary to the 2006 EPR with a view to incorporate all relevant developments in the
field.
7
However, following the work on the Commentary and observations received from experts in
the field,
8
the PC-CP suggested the revision of not only the Commentary but also, on a limited
Prisoners. This was followed by the adoption of the 1987 Committee of Ministers Recommendation R (87) 3 on the
European Prison Rules and the 2006 comprehensive overhaul of those rules, including their 2020 update and revision.
2. See Preamble to the European Prison Rules and the related Commentary. See also Dirk van Zyl Smit and Sonja
Snacken, Principles of European Prison Law and Policy (Oxford University Press, Oxford 2011), 20–21, 36.
3. In the 2020 revised European Prison Rules, this provision did not change.
4. United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the
Bangkok Rules), A/C.3/65/L.5, 6 October 2010.
5. Resolution of the UN General Assembly, A/RES/70/175, of 8 January 2016.
6. For further details, see Nikolaos Koulouris, Report on the update and revision of the Commentary to Recommendation
Rec (2006) 2 of the Committee of Ministers to Member States on the European Prison Rules (PC-CP\docs 2017\PC-
CP(2017) 3_E REV, 25 March 2017).
7. PC-CP Terms of Reference for 1 January 2018–31 December 2019. At its plenary meeting in October 2016, the PC-CP
decided to task its Working Group to prepare in 2017 the necessary revision and update of the Commentary (PC-CP,
Summary meeting report of the 6th Plenary meeting, Strasbourg, 19-21 October 2016, PC-CP (2016) 11)
8. In the revision process, the Court’s Registry, the CPT Secretariat and other Council of Europe expert bodies were
consulted. Moreover, the Confederation of European Probation also took part in the process, as well as the European
Organisation of Prison and Correctional Services. In addition, several NGOs made their observations on the draft text
of the European Prison Rules . This included, in particular, the Penal Reform International and the Association for the
468 New Journal of European Criminal Law 11(4)
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