Europe behind bars: the use of the European Prison Rules in the French prison system. Awaiting the European Union?

by Charline QUILLÉROU (EU-LOGOS Athéna trainee)

NB The text below summarizes a French Master thesis.

The reform of the prison system is a sensitive issue in France. This debate takes place in a context of dilapidating prison buildings and chronic overcrowding, exacerbated by punitive criminal justice policies. Such a situation leads to sub-human conditions of detention that have been condemned many times, both nationally by MPs[1], associations involved in the defence of detainee’s rights[2] or various papers[3], and internationally by the Commissioner for Human Rights of the Council of Europe[4] and the European Court of Human Rights. The reforms undertaken have difficulties improving significantly these conditions of detention.

The Council of Europe (CoE) and the European Union (EU) have a role to play in protecting the rights of persons deprived of their liberty. Recommendations have been instrumental in changing national practices. Nevertheless, the EU has almost turned a deaf ear to it while the CoE has been very active. In its resolution of December 2011, the European Parliament recognised that “whereas detention conditions and prison management are primarily the responsibility of Member States […] shortcomings, such as prison overcrowding and allegations of poor treatment of detainees, may undermine the trust which must underpin judicial cooperation in criminal matters based on the principle of mutual recognition of judgments and judicial decisions by EU Member States[5]. As a result in June 2011, the European Commission published a Green paper entitled “Strengthening mutual trust in the European judicial area – A Green Paper on the application of EU criminal justice legislation in the field of detention”.  Since then, nothing has happened at the level of the EU.

The CoE is an intergovernmental organisation created in 1949 by a group of European countries – Belgium, Denmark, France, the United-Kingdom, Iceland, Italy, Luxembourg, the Netherlands, Norway and Sweden – that today consists of 47 Member States. All the EU Member States take part in the CoE, together with Turkey and Russia, to name but a few. According to its statute, “the aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress.[6] To achieve that purpose, especially in regards criminal matters, the CoE relies on the European Court of Human Rights (ECtHR) and the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).

The European Prison Rules (EPR) consist of a set of three recommendations made by the CoE which define the minimum rules applicable in prison facilities both for detainees and staff. They cover many aspects of prison life such as hygiene, nutrition, contact with the outside world, work, recreation, education, transfer of prisoners, health or training of prison staff. Therefore, the idea is to harmonise national practices across Europe. Initially adopted in 1973, the EPR were updated in 1987 and 2006. The latest update attempted to take into account the developments in the jurisprudence of the ECtHR, in the norms established by the CPT, in societal changes that arose due to security constraints in the aftermath of 9-11 and the resulted prison population inflation.

There are 108 EPR, detailed in 308 recommendations. It is of crucial importance to understand that a recommendation is not legally binding. The EPR are not entitled to be transposed into national law as such, but are meant to serve as a guide for Member States in formulating their policies and legislation. This is well exemplified in the Commentary to Recommendation Rec(2006)2 that indicates : “prison administrations should seek to apply all Rules in the letter and the spirit of the principles.[7] The main objectives are the establishment of common standards and reinforcement of international cooperation through appropriate incentives. The incitement dimension of the EPR refers to the issue of the influence of the CoE within the territory of the Member States that has been theorized as “europeanisation”. The europeanisation process refers to the influence of the European institutions or organisations on national and sub-national politics, policies and polity. Prison matters are barely addressed by the European institutions and CoE recommendations are not legally binding. On such important policies, europeanisation is only about the Council of Europe, even though human rights lie at the heart of the EU.

If European activities have a substantial impact on national institutions and policies, heterogeneity is its main feature. The adoption of the revised EPR in 2006 is a case in point, revealing the complex mechanisms of europeanisation at work. This is all the more true given that it led to the adoption of the French prison law of 24 November 2009, which, according to the Ministry of Justice Web site, “validated and translated into domestic legislation the majority of the European Prison Rules”. All these elements raise the following question:

To what extent do the European Prison Rules participate in the europeanisation of the French prison system?

I.  The French prison administration: a major player in the europeanisation process

The signing of Recommendation Rec(2006)2 on 11 January 2006, on the EPR, did not generate any new positions from the French government, notwithstanding the political and moral commitment it represents. That being the case, the prison system has been immersed in a europeanisation process through the CoE, associations and prison administration joint action. There are three identifiable mechanisms.

A.                Horizontal europeanisation through cooperation

Prison europeanisation initially occurs through peer learning, which means horizontally. That cooperation refers to socialization and learning processes. There is an international environment fostering the sharing of experience and best practices, bringing the various players together and finally leading to europeanisation. The best illustration is the Conference of Directors of Prison Administration organized by the CoE every two years since 1972. They have institutionalized regular exchanges between European players who can share their experience of the implementation of CoE recommendations and the challenges faced. These spaces become true socialisation places as they favour the spread of new ideas and prison practices. All stakeholders create a contact network. The development of these socialisation spaces, and exchanges between professionals from different countries, help to import the practices that are supported by the international community and push forward the French prison system. This international gathering also creates opportunities whereby the prison administrations are able to export their own proven practices. Similarly, the training of prison directors and managers of rehabilitation and probation services, offered by the National Prison Service School, includes an internship in a European country. These professionals enter into a European dynamic.

Nevertheless, obstacles to europeanisation do exist. First, language is an obvious problem. With French and English being the official languages of the CoE, their native speakers are not directly concerned by this obstacle to communicating. However, like their counterparts, they encounter persistent administrative barriers. Then, the exchange of experiences requires knowledge of the functioning of the European partners’ prison system. In spite of many socialisation spaces, actual knowledge is not sufficient, with regard to the variety of prison systems applied. Despite these challenges, the French prison system evolution is largely due to international exchanges.

B.   Cognitive europeanisation: a transfer of policy without legislation

1.      The logic of persuasion

The European influence in relation to prisons includes an important cognitive dimension. According to the typology established by Sébastien Guigner, cognitive europeanisation refers to the production and/or dissemination of ideas and practices in the realm of public policies.[8]

The dissemination of the CoE’s ideas and principles is based, in the first place, on Recommendation Rec(2006)2. This text, emerging from a compromise, creates a challenge for the CoE in that it must convince the Signatory States to let the procedure run its course within their prison systems. That is the reason why its semantics are of crucial importance. The recurring use of “shall”[9] is proof of this, since it expresses a moral or legal obligation, an injunction. All the obligations that punctuate the said recommendation aim at persuading Signatory States that this is the line to take in the conducting of national penal policies. Besides, the most frequently used verb tense is present. According to the proper use of English verb tenses, it is used to express a universal truth and describe how things are. Considering that Member States are expected to “be guided in their legislation, policies and practice[10] by the EPR, Recommendation Rec(2006)2 presents the prison world as what it should be in all Members States at the time of writing.

Beyond semantics, the Committee of Ministers of the CoE[11] highlights good practices in the Commentary to Recommendation Rec(2006)2, thanks to international comparisons. The indicators generated are used to assess and direct the EPR implementation in the countries concerned. This is benchmarking. Benchmarking is about setting standards or reference points that become targets to be met or indicators to monitor and evaluate practices and results.[12] Consisting of learning from public policies conducted abroad, this instrument of comparison is a key tool for cognitive europeanisation.

2.      The logic of imposition

Cognitive europeanisation is also imposed and based on the diffusion of European standards that were built on constraint. As far as the EPR are concerned, imposed cognitive europeanisation, and the resulting pressure to adapt, are generated via a questionnaire about national EPR enforcement. On 5 June 2008, more than two years after the adoption of Rec(2006)2, the European Committee on Crime Problems (CDPC) published CoE Member States’ answers to the questionnaire. This is an imposed europeanisation in that the Council of Europe, through the CDPC, exerts a pressure to adapt on its Member States. This pressure is all the stronger as the questionnaire and the corresponding replies are available online, on the CoE Web site, as well as Recommendation Rec(2006)2. Therefore, everyone has a free access to this information. Associations involved in the defence of detainee’s rights can, for instance, use it as a means of political contestation, or even denounce the inadequacy of the action taken regarding the answers reported in the questionnaire.

International comparison is also based on the publication of comparable figures such as the Annual Penal Statistics of the Council of Europe. This is europeanisation through figures or « européanisation par le chiffre »[13]. These figures allow for the ranking of Member States, and by extension national players, depending on penal policies adopted. Thus, CoE Member States compete to define or match the European model.

The CoE has several other means of pressuring its Member States. The activities of supranational bodies such as the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the European Court of Human Rights (ECtHR) are factors that contribute to imposed cognitive europeanisation. The CPT “organises visits to places of detention, in order to assess how persons deprived of their liberty are treated.[14] It is a monitoring body with an “unlimited access to places of detention, and the right to move inside such places without restriction.”[15] After each visit the CPT writes a detailed report with recommendations to the State concerned. The European Prison Rules provide global standards for the CPT and its reports refer to them. Visited countries are being forced to adapt. If there is no legal sanction in case of non-compliance with the CPT recommendations, such behaviour would undermine the image and credibility of the country. De facto, the CPT enjoys an important aura. The flaws and weaknesses underlined by the CPT recommendations are likely to be asserted against national authorities by associations or bodies for the protection of human rights, both nationally and internationally. That is the case of the ECtHR which regularly refers to CPT’s reports and the EPR in its decisions. The EPR have legal effects on CoE Member States as a soft law.

C.   A double vertical europeanisation

1.      A bottom – up logic to remedy the inaction of the authorities

Even though the adoption of a European recommendation represents a political commitment from the signatory States, it is often lost among national policies and national concerns, being given less priority; especially when it is a non-binding text. In the absence of any government initiative to disseminate Recommendation Rec(2006)2, this role was performed by the associative sector which has become a lobby. For instance, Genepi (Groupement Etudiant National d’Enseignement aux Personnes Incarcérées), which gathers students who teach classes to detainees, devoted its Passe-Murailles magazine to the new EPR in March/April 2006. The Rules were published in full. This is a symptomatic example of an upwards vertical europeanisation. Associations attempt to draw attention and put pressure on national authorities.

This role can also be seen in the speeches of stakeholders from the associative community. They use international comparisons and raise the question of prison through the prism of Europe. It is benchmarking again. Therefore, a reflection on the theme of EPR has been initiated by associative stakeholders, in the light of neighbouring European experiences. This reflection created a political pressure. On the researchers’ side, the same strategy has been used.

2.      A top-down logic exerted on the prison administration

From 2006, the National Prison Administration, under the authority of Claude D’Harcourt, has communicated extensively about the European Prison Rules. The text has been disseminated to its staff as well as a part of the Commentary of the Committee of Ministers of the CoE. Five electronic newsletters about the EPR were published between 2007 and 2010, both in French and English. This is a way for the Head of the National Prison Administration to promote staff and public knowledge. The external dissemination strategy is based on numerous references to the CoE and the implementation of European standards whereas internal communication stresses the improvement of working conditions. The aim is to obtain the consent of prison staff, or more specifically, of unions representing them. From an external perspective, the National Prison Administration tries to bolster its image towards the public opinion. Thus, the use of Europe is part of a strategy.

In spite of a strategic use of Europe, professional practices have changed through the EPR. In the spring of 2006, the National Prison Administration worked on the definition of the Rules that could be better adapted to the situation of the French penal institutions. Among 108 EPR, eight are considered by the French administration “to be a real challenge for improving prisons and, more particularly, for dealing with convicted prisoners who are carrying out their sentence in a remand prison.”[16] Then, after experimentations, the National Prison Administration decided to focus on arrangements for receiving new inmates. However, facing the inertia of prisons staff, the Central Administration had to put pressure on Interregional Directorates for the Prison Services which in turn put pressure on prison governors for the eight EPR to be implemented. In that sense, top-down europeanisation is based on constraint. This constraint has led to the creation of reception areas in the French prisons, specifically for new inmates. Everything is organized by Interregional Directorates to force penal institutions to change.

Europeanisation does not mean convergence. Proof if it were necessary, the EPR are confronted to their actual implementation in the French prisons. Then, national players adapt European requirements to the national situation and reshape them according to their own interest. The logic of appropriation and rational choice interfere with the implementation of Recommendation Rec(2006)2. National stakeholders appropriate European mind sets and get Europeanised. Considering rational choice, Europe and the Council of Europe are sources of constraint or opportunity for them.

The pressure exerted on national stakeholders brings national practices in line with the European model embodied by the European prison rules. Such a pressure is exerted according to a top-down logic additional to a bottom-up movement. As well, it resulted from an imposed cognitive europeanisation, from the work of the CPT, the European Commissioner for Human Rights and the ECtHR case law. Not to mention that international comparisons play an active role in this process. Then, europeanisation is managed by national players themselves. While the process is carried by the National Prison Administration at first, the French Government is adopting the same approach from 2008, with the introduction of prison legislation in the Senate.

II. A europeanisation process taking over by French legislators

The draft prison law tabled in the Senate on 23 July 2008 makes reference, repeatedly, to the European Prison Rules in its explanatory statement. With this draft the French government, through the Minister of Justice Rachida Dati, underlines a national reform while legitimising its action by references to Europe. The result is a partial europeanisation of the French prisons.

A.   A national reform dynamic

1.      The ferment of the early 2000’s

Appointed in September 1999 by the Minister of Justice Elisabeth Guigou to write a report on the French prisons, Guy Canivet, then first president of the Court of Cassation, showed himself to be very critical with regard to the French prison system. Therefore, he already advocated a profound change in the functioning of prisons, in particular putting in place a prison law and creating an independent system to control prisons.[17] Such recommendations were in line with international condemnations of conditions of detention in the French prisons. Beyond the Canivet Report of March 2000, two parliamentary inquiry reports were published in June of the same year. [18]

These documents, as well as the media coverage of the prison area at that time, led the government to work on a prison law. A Strategic Orientation Committee was established and a draft legislation prepared. It was about to unify the law and limit national and international condemnations. The debate initiated by Elisabeth Guigou was not carried on by her successor, Marylise Lebranchu, after a cabinet reshuffle.

These elements contribute to defining the French prison policy of that time as avoiding blame politics.[19] This policy attempts to avoid criticism without supporting an ambitious plan. It is about giving a sense that the government is acting without any concrete actions. All the more so, as the prison topic is not politically valuable; even though punctually it is politically mobilizing as occurred in 2000-2001. The prison policy is cyclical. The 2007 presidential election and the formation of a new government was an additional step towards the adoption of a prison law, the start of a new cycle. It was an opportunity for the associative actors to enrol the French government for a europeanisation process.

2.      The willingness to change materialised in 2008

The French section of the International Observatory on Prisons (IOP) has a role in the incorporation into French law of the EPR, exerting pressure on the presidential candidates in 2007. Actually, on 14 November 2006, on the occasion of the Assembly on the general situation of prisons organised by IOP, it presented a guidance document for a major transformation of the prison situation.[20] At the end of the day, the presidential candidates were questioned on that to ensure that they commit themselves to deeply reform the French prison system.[21] Even though the wording does not explicitly refer to the EPR nor the CoE, it refers to their content, especially detainees’ rights. The candidates’ responses were published on 16 January 2007. [22] In his response, Nicolas Sarkozy made the following commitment: « Les règles pénitentiaires érigées par le Conseil de l’Europe indiquent les normes considérées comme indispensables. A nous de les appliquer. Une loi pénitentiaire doit préciser les missions de l’administration pénitentiaire et les conditions générales de détention ». If elected, the candidate committed to apply Recommendation Rec(2006)2 on the EPR, adopted two years earlier. Therefore, the associative actors gave the necessary impetus for adopting a prison law to include EPR within the French law. This is a bottom-up europeanisation.

On 11 July 2007, Rachida Dati, the newly appointed Minister of Justice, convened a Restricted Orientation Committee headed by Jean-Olivier Viout, Public prosecutor at the Appeal Court of Lyon, in order to prepare the draft prison law on which Nicolas Sarkozy committed before his election as President of the Republic. That being the case, many objectives were assigned to the draft law, especially reinforcing legal certainty, but also clarifying the tasks of the National prison administration, improving staff recognition, governing the legal position of detainees and preventing re-offending. All these objectives show that the introduction of the EPR within the French law is not the government’s only motivation in 2008. The legal and historical national context held an important place.

B.     A legitimizing europeanisation

1.      Avoiding international criticism

Repeatedly, the ECtHR and the CPT of the Council of Europe pointed out the French prison policy’s shortcomings. Public policies have been implemented to avoid criticism, according to the theory of avoiding blame politics. The 2008 draft prison law was in line with this dynamic. The rhetoric about prison changes were supposed to mitigate the protests and criticisms.

Actually, in the “international context” section, the explanatory statement refers to the European Parliament resolution of 17 December 1998 which invites EU Member States to adopt a fundamental law on prisons. Moreover, the United Nations Standard Minimum Rules for the Treatment of Prisoners as well as the European Prison Rules are presented as vectors of change.[23] This is a way for the French government to legitimize its approach through European and international requirements. This legitimisation is double-edged. Positive, it is for the legislator to underline the relevance of integrating European principles into national practices. Negative, it is to make reference to the European constraint. In both cases, the result is a full or partial compliance of the national public policy with the European requirements. The draft prison law is presented as being in line with the European recommendations.[24]

The use of “Europe” also relies on cognitive processes. The extensive use of European concepts and terms as well as the multiple references to the EPR are cases in point. Europeanisation also results from calculations by policy-makers.

If there are calculations and a strategic use of Europe, it is important to underline that there is Europeanisation. The best illustration of it is the reduction of the maximum duration of solitary confinement, provided in Article 53 of the draft prison law. This reduction “finds justification within the purpose to guarantee the respect for and the dignity of the persons deprived of their liberty and to harmonize practices with European legislations and the rules set out by the Council of Europe.[25] It appears that the maximum duration allowed by the French rules is in 2008, “well beyond the one allowed by most other European legislations”. French policy-makers are being forced to change practices through European benchmarking. European standards have been fixed by international comparisons and have become aims to be achieved. Benchmarking is not always used to push forward. It has been used by the French authorities to retreat from a national progressive position. It is the case of Article 49 of the draft law, regarding individual cells for prisoners awaiting trials.

In order to avoid international criticisms, policy makers have declared that France is complying with Recommendation Rec(2006)2. This message is for international organizations, but also for national stakeholders and French citizens. The strategy of avoiding blame politics is clear, since only ten EPR are contained in the explanatory statement. The European Prison Rules are only one source of inspiration of the 2008 draft prison law.

2.      A draft law placed under the label of translation

Neither the draft prison law nor the final text is a “transposition Rule by Rule” of Rec(2006)2. [26] Instead, there is a translation of the said Recommendation through adjustments. Some of them are due to the fact that some regulatory provisions of the Criminal Procedure Code are contrary to the EPR. This is the case of the search of prisoners’ personal effects.[27] Other EPR, compatible with French law, are hard to apply owing to material constraints.

That being the case, Jean-Charles Froment, professor at the University Pierre-Mendès France of Grenoble and director of the Institut d’Etudes Politiques of Grenoble, believes that the 2009 prison law furthers detainees rights. [28] Granting rights leads to a legal status for prisoners. To achieve this, the European Prison Rules have been a reference.

Despite advances attributed to the EPR, when the draft law was debated and even now, the prison law has been considered as accommodating for the National Prison Administration. To adopt a more ambitious approach would have exposed the government to criticisms, since the area of prison policy is not considered politically valuable. On the other hand, to lower its ambitions gives rise to discontent and protests from associative stakeholders. However, as the ultimate goal of politicians is their re-election, a policy negotiated down to a minimum would be preferred in order to satisfy the greatest number of voters.

The prison policy considered by the government in the draft law goes back to the notion of path dependency. The choices made by previous governments’ constraint the current government. In that respect, the repressive policies implemented in early 2000 having reinforced prison overcrowding, the EPR are hard to apply as things stand. The result of all these factors is an adaptation of a part of the EPR. The gap between Recommendation Rec(2006)2 and the concrete situation of the French prisons being wide, the rest of the Rules are not applied. The official position regarding the EPR is in contrast with all these adjustments.

C.     A limited Europeanisation process

1.      Discussions in Parliament turned to the Council of Europe

From the general discussion of the draft prison law in both chambers of Parliament, the tone is set. MPs and Senators focus on the improvement of prison conditions and adherence to the European requirements. They intend to adapt the French law to European standards and to remedy the restrictions introduced by the government draft law. Therefore, imposed europeanisation and the resulted pressure to adapt is reflected in speeches and discussions. References to the European case law, the ECtHR as well as CPT’s reports and the European Commissioner for Human Rights, are frequent. Senators and MPs underline the necessity to change national practices regarding the number of European condemnations of France. It is about voting a law which can prevent international legal disqualifications detrimental to the image of France. To do so, the European Prison Rules are a reference to establishing a national public policy.

Likewise, the principle of imposed europeanisation is reflected in the choice of vocabulary used by Parliamentarians. They speak about “European obligations”, “rigorous regulatory framework”, highlighting France is “blamed for its dysfunctional justice” and appears to be “one of the worst examples” in Europe.[29] These semantic choices help to legitimize parliamentary amendments. European recommendations, especially the EPR, are presented as objectives to achieve.

Beyond vocabulary matters, MPs like Senators use international comparisons as a vehicle for change. As an example, Alain Anziani, spokesman for the Socialist Group in Senate, calls upon government to “abolish the disciplinary measure of placement in a punishment cell and replace them by individual containment measures. If not, at least reduce the period in order to meet European standards: the maximum duration of placement in a punishment cell is three days in Ireland, nine days in Belgium, fourteen days in Great-Britain, twenty-eight in Germany.[30] The pooling of experience as well as comparisons help to set out European standards. Such benchmarking strategy is also a way for the Government to justify its public policy choices.

2.      Europeanisation faces resistance

Despite good intentions expressed on the occasion of general discussions of both assemblies, the europeanisation process of the French prison system through the prison law has faced obstacles. The rejection of the majority of amendments, both in Senate and National Assembly, is the most significant example. As a result, there is an implementation on an “à la carte” basis of the Rec(2006)2. The legislative process contributes to the avoiding blame politics strategy: flaunting that the EPR are included in national law while only a part of them is concerned.

As a recurring pattern of rejection of the proposed amendments, Article 40 of the French Constitution is worded as follow (translation) : “Proposals and amendments from members of Parliament are not admissible when their adoption would result in, whether decreasing public finance, or the creation or worsening of a public cost.” In 2008, the Union UGP-CGT estimated that “most of the European Prison Rules introduced in the text […] are going to lose its sense, smashing on the actual budgetary situation and on the Government’s penal policy.[31] The rejection of most of the proposed amendments supports that point. The europeanisation process also runs up against national considerations which have been given preference over European requirements.

Even though a significant number of amendments found their justification in the EPR, others could have been proposed. However, national considerations are more powerful and govern the application of Recommendation Rec(2006)2. In that respect, the fight against the degradation of prison conditions, resulting from overpopulation, is a major objective held by Parliamentarians during the legislative procedure. The implementation of the EPR is eventually a mean to achieve it. The fact remains, however, that overpopulation prevents the Rec(2006)2 from being fully introduced into French law. All these elements, added to the necessity to adopt a prison law as soon as possible, have led to a prison law partially taking into account the EPR.

In the national criticisms section, it was of crucial importance for the government and then the Parliamentarians to rally the National Prison Administration to its draft prison law. In order to achieve it, the National Prison Administration had been associated to preparatory work. The evolution of prison practices, in line with the EPR, could not go beyond the already-under-way reforms of the Prison administration. All these resistances have led to the adoption of a legal text partially in line with the European Prison Rules.

3.      Incomplete substantial modifications

The French prison law, adopted in 2009, enabled some recommendations of the Council of Europe to be taken into account under domestic law. These modifications that can be described as substantial are only partial.

The restrictions imposed on prisoners’ rights within the final version of the draft prison law are the best illustration of it. Even though the contribution of the law, as far as the definition of prisoners’ rights is concerned, is important, the fact remains that there are arrangements and restrictions. Article 22 of the law translates the basic principles contained in the nine first Prison Rules as follow: “The prison administration guarantees due regard for the dignity and human rights of each person deprived of liberty. The exercise of these rights may be restricted only as a result of constraints inherent to prison, security and order, the prevention of re-offending and the protection of the interest of victims. These restrictions take into account the age, health condition, disability and personality of the person deprived of liberty.[32] The grounds for limiting rights have been significantly expanded regarding EPR 3: “Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.” At the national level, the EPR are subject to adjustments, to a translation. In that sense, europeanisation is partial. Nevertheless, a closer look at the situation shows that the French Prison law implements some progress, inspired by the European Prison Rules. It is the case of provisions about searches.

The influence of the Council of Europe over the French prison law has been materialised by many references to the EPR and the CoE at the national and parliamentary levels. However, the completion of the europeanisation process is characterized by a gap between European standards and the French law. This gap results from the resistances expressed by both the Parliamentarians and Government. A part of the EPR is considered in order to dismiss critical arguments while taking into account national constraints. This involves a very delicate balancing act and results in a law partially in line with the European requirements set by the EPR.

*      *      *

The adoption of Recommendation Rec(2006)2 of the CoE has prompted reactions from national stakeholders. Among these reactions, the most visible is the one of the National Prison Administration. A set of reforms has been implemented since 2006, on the basis of European requirements. The analysis has shown many different processes of europeanisation. Actually, this process is led by associative stakeholders at first. In a second move, the Prison Administration gets involved. Since 2008, the French legislator is also part of the process.

The study of the draft prison law as well as the final text have shown a willingness to avoid international and national blame. The strong opposition of the unions and the May 2009 social movement have been a major stumbling block to the full implementation of the EPR through the prison law. The lack of ambition of the prison policy is also caused by material constraints. The adoption of repressive policies led to an overpopulation in most prisons which make the enforcement of the 108 EPR difficult. Politicians, for their part, are concerned about election issues. As already said, the prison matters are not politically valuable. The point is not to trigger dissatisfaction among voters adopting a prison law considered as too ambitious.

Nevertheless, the EPR have influenced the evolution of the French prison system between 2006 and 2009. During this period, the National Prison Administration set up extensive facilities to make arrangements for receiving new inmates in line with European standards and the EPR. Then, in 2008-2009, Recommendation Rec(2006)2 supported the French Government and Parliamentarians preparatory work on the new prison law together with the ECtHR case law, the CPT reports and the European Commissioner for Human Rights recommendations. The fact remains that effectiveness is not only a matter of wording and text. The information report of the French Senate about the implementation of the 2009 prison law underlines that “its implementation still faces many challenges”. [33]

As “the only directly-elected body of the European Union”[34] representing the European citizens, the European Parliament is concerned about human rights. However, only a few things have been done regarding the prison system in the European Member States. Already in the resolution of 15 December 2011 on detention conditions in the European Union, the European Parliament called “on Member States to take urgent measures to ensure that the fundamental rights of prisoners, in particular the rights of vulnerable persons, are respected and protected, and considers that minimum common standards of detention should be applied in all Member States.[35] The EPR are mentioned as an example of minimum common standards. In France, the adoption of the prison law on 24 November 2009 ended the debate over the European Prison Rules. From 2009 onwards, the national authorities have been claiming that they are implemented. Only a few are effective but no one gets upset apart from some academics and associative stakeholders. Besides, the above mentioned resolution “calls on the Commission and the Fundamental Rights Agency to monitor the situation as regards detention conditions in the EU, and support the Member States in their efforts to ensure that their laws and policies are consistent with the highest standards in the field[36]. If any, what about the monitoring carried out? What about the legislative proposal on the rights of persons deprived of their liberty the European Parliament asked for? The prison management is the responsibility of Member States but shortcomings “may undermine the trust which must underpin judicial cooperation in criminal matters.”[37] The European Union and the European Parliament have a role to play.

What is the next step? An own-initiative report by the European Parliament ?

FURTHER READING

  • Council of Europe, Commentary to Recommendation Rec(2006)2 of the Committee of Ministers of the Member States on the European Prison Rules
  • Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on the effective respect for Human Rights in France following his visit from 5 to 21 september 2005, For the attention of the committee of ministers and the parliamentary assembly.

NOTES

[1]. The French National Assembly, « La France face à ses prisons », June 2000 & The French Senate, « Prisons : une humiliation pour la République », June 2000.
[2]. A French Federation called « Fédération des Associations Réflexion, Action, Prison et Justice » (FARAPEJ)
[3]. E.g. J. MOREL D’ARLEUX, « Les prisons françaises et européennes : différentes ou semblables », 2010
[4]. Report by Alvaro Gil-Robles, Commissioner for Human Rights, On the effective respect for Human Rights in France following his visit from 5 to 21 September 2005.
[5]European Parliament resolution of 15 December 2011 on detention conditions in the EU (2011/2897(RSP)) : http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2011-0585&language=EN&ring=B7-2011-0687
[6]. Statute of the Council of Europe, Article 1.a)
[7]. Commentary to Recommendation Rec(2006)2 of the Committee of Ministers of the Member States on the European Prison Rules, p.3
[8] S. Guigner, « L’UE, acteur de la biopolitique contemporaine : les mécanismes d’européanisation normative et cognitive de la lutte contre le tabagisme », p.79 : “Lorsque l’européanisation se produit par l’intermédiaire de la production ou du transit de l’information au niveau européen, nous parlerons d’européanisation cognitive
[9]. 331 apparitions in Recommendation Rec(2006)2
[10]. Rec(2006)2, p.1
[11]. “The Committee of Ministers is the Council of Europe’s decision-making body. It comprises the Foreign Affairs Ministers of all the Member states, or their permanent diplomatic representatives in Strasbourg. It is both a governmental body, where national approaches to problems facing European society can be discussed on an equal footing, and a collective forum, where Europe-wide responses to such challenges are formulated. In collaboration with the Parliamentary Assembly, it is the guardian of the Council’s fundamental values, and monitors member states’ compliance with their undertakings.” http://www.coe.int/T/CM/aboutCM_en.asp
[12]. Definition inspired by S. GUIGNER, « L’Union européenne, acteur de la biopolitique contemporaine », p.85
[13]. Ibid., p.89
[14]. CPT Web site : http://www.cpt.coe.int/en/about.htm
[15]. Ibid.
[16]. Newsletter, 2007 : http://www.justice.gouv.fr/art_pix/LettreRPE1.pdf
[17]. P.V. TOURNIER, « La prison : une nécessité pour la République ? », p.4
[18]. The French National Assembly, « La France face à ses prisons », juin 2000 ; The French Senate, « Prisons : une humiliation pour la République », juin 2000.
[19]P. ARTIERES et P. LASCOUMES, Gouverner et enfermer : La prison, un modèle indépassable ?, p.26
[20]. IOP – Information available here : http://www.oipsf.org/index.php/acte-ii-le-manifeste (FR)
[21]. Solemn declaration available here : http://www.oipsf.org/images/stories/divers/declarationfinaledesegcp.pdf (FR)
[22]. IOP press conference : http://www.oipsf.org/images/stories/divers/analysedesegcp.pdf (FR)
[23]. French Senate, Draft prison law n° 495, p.3
[24]. Ibid., p.4
[25]. Ibidem, p.35
[26]. J. MOREL D’ARLEUX, Sous-directeur des personnes placées sous main de justice, Member of the French prison administration, Telephonic interview 12.03.2014
[27]. Article D.269 of the Criminal Procedure Code provides that « les surveillants procèdent, en l’absence des détenus, à l’inspection fréquente et minutieuse des cellules et locaux divers où les détenus séjournent, travaillent ou ont accès » whereas EPR 54.8 is : « Prisoners shall be present when their personal property is being searched unless investigating techniques or the potential threat to staff prohibit this. » In the absence of modification of this provision, EPR 54.8 is not recognized in French law.
[28]. J.-C. FROMENT, « La réforme pénitentiaire en France. Débats intemporels, évolutions conjoncturelles », in Droit et société, p.379
[29] General discussion, French Senate, François-Noël BUFFET’s and Jacques MEZARD’s speeches; General discussion, National Assembly Michel HUNAULT’s speech.
[30] General discussion, Senate, mars 2009
[31] Union générale pénitentiaire – Confédération générale du travail, Press release 10 June 2008 quoted by OIP, « Le législateur face à la loi pénitentiaire », in Dedans Dehors n°67-68, p.41

  1. Legifrance Web site 

[33]. Ibid., translation p.9
[34]. http://www.europarl.europa.eu/portal/en
[35] European Parliament resolution of 15 December 2011 on detention conditions in the EU (2011/2897(RSP))
[36]. Ibid, p. 3.
[37]  Ibidem, B.

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