Europe: "prisoners' rights under further pressure"

Leandro Mancano. The idea behind this book was triggered by multiple factors. I started developing an interest in issues of deprivation of liberty when I was an undergraduate student in law. After, I then decided that I wanted to write my PhD on this topic as I realised a holistic analysis of the EU’s approach to detention was missing. Alongside that, I was involved in an NGO providing detainees with free paralegal assistance (l’Altrodiritto, mainly operating in Tuscany). Entering a prison feels like entering a parallel universe, with a great sense of alienation. This experience only enhanced my resolve to investigate issues of detainees’ rights and to bring a contribution to a topic somewhat under-explored.

In the book, I try to build an analytical framework to look at detention within EU law across a wide variety of areas: substantive and procedural criminal law, asylum and immigration law, citizenship and free movement. On the one hand, the main objective of the volume is to highlight commonalities and patterns emerging transversally.

It emerged that the ultimate goal of this comprehensive body of legislation and case-law is the preservation of the Union as an area without internal frontiers.

On the other, I aim to emphasise how traditional strongholds of personal liberty – such as the right to liberty – need to be rethought and adjusted to the challenges brought by new systems of cooperation such as the EAW. New systems of cooperation within the EU are based on the presumption that member states comply with fundamental rights and introduce a higher level of automaticity in inter-state surrender of persons; current EU law therefore calls for new and tailored solutions.

LM. The most famous example is the EAW, but the whole system of judicial cooperation in criminal matters within the EU has brought about significant changes. This ‘new’ mechanism is now 20 years old and is based on the principle of mutual recognition: namely, the principle that a judicial decision issued by EU state ‘A’ and addressed to EU state ‘B’ must be recognised and executed by the latter automatically and without further formality. Such a new method has streamlined the previous system of extradition considerably and, as a result, posed challenges to individual rights.

Over the years, different areas of controversy have arisen, in particular: execution of arrest warrants for convictions issued in absentia; prolonged detention of the person, pending execution of the warrant, beyond the deadlines established in the legislation; and mostly, the place of inhumane detention conditions in the state where the person will be transferred.

In Aranyosi and Căldăraru, In Aranyosi and Căldăraru, one of the most important judgments in the recent history of the EU Court of Justice (CJEU), it was for the first time found that an EAW should not be executed where there is a risk that the person will be subject to inhumane and degrading treatment, in the state of surrender. Although many questions are still unanswered and the interpretation might not have always been consistent, there has been increased awareness of the seriousness of appalling detention conditions; with the CJEU - and national courts – standing up against the execution of EAWs in case there is a risk of inhumane treatment.

LM. The introduction and development of a smoother system of judicial cooperation in criminal matters has materialised in EU measures, which relys on or involve the deprivation of liberty. This has inevitably created problems and placed prisoners’ rights under further pressure. However, it has also meant further opportunities to protect those rights.

Framework Decisions 2008/909/JHA and 2008/847/JHA introduced a mechanism that allows (and, in some cases, forces) persons convicted of custodial penalties to be transferred to the state where they will have higher chances of reintegrating and could benefit from penalties which do not involve detention - which would be in their original nation state. Similarly, the so-called European Supervision Order (Framework Decision 2009/829/JHA) governs the transfer of persons in pre-trial detention to their EU state of residence or nationality, where they will be better monitored and placed under less restrictive measures.

Over the last few years, desk-based and empirical studies have emerged on the actual implementation of these measures; highlighting flaws and gaps in practice (for example, prisoner transfers with no or poorly informed consent expressed by the prisoner). These instruments constitute a starting point in the improvement of prisoners’ rights although much still needs to be done in these areas; as well the other areas I mentioned above. Furthermore, the long-standing and vital work of the Council of Europe, the European Prison Rules and the Committee on the Prevention of Torture, as well as the European Court of Human Rights on prisoners’ rights, should not be forgotten.