Prison Insider reached out to the seven political groups of the European Parliament in order to gather their opinions on prison conditions and the rights of prisoners in the European Union. Over 230 people across all the political groups were contacted: candidates, chairs of the political groups, press services for the groups, parliamentary press officers, etc. Three political groups answered our questions: the Progressive Alliance of Socialists and Democrats group, the Greens/European Free Alliance group, and the Co-Chair of The Left group¹. The chair of the European People’s Party said that they did not have time to answer us, as their agenda was full for the duration of the campaign. The other groups did not respond to our requests. Their silence raises questions about their commitment to dignity in prison and fundamental rights.

The European Parliament has a key role to play in this area: it influences the European Union’s laws and policies, which indirectly but significantly impact national penitentiary systems. Parliamentarians can influence the attention given to different policy areas. Although penitentiary policies primarily fall under the authority of individual States, the decisions taken by the Union’s bodies have a real impact on prison conditions.

The European Union has established minimum standards for prison conditions. However, these are not binding. They were restated in a 2022 recommendation from the European Commission. This document mentions the persistence of certain serious problems, such as ill-treatment, in some member States. It stresses that the 27 member States, all of which are also members of the Council of Europe, are legally bound by the basic rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

Two bodies of the Council of Europe are responsible for ensuring the rights of prisoners: the European Court of Human Rights (ECtHR), whose decisions are binding for the countries addressed by them, and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which is charged with visiting places of deprivation of liberty to examine the conditions in which people are detained.

A study, commissioned by the European Parliament and published in February 2023, shows that the work carried out by the Council of Europe represents a precious resource for parliamentarians as they draft legislation and defend human rights within the EU.

Greens/EFA says its members thoroughly reflect on the CPT’s work: “We carefully take into account the work of the CPT, and regularly rely on the content of its legal texts as well as on the inputs it provides in occasions of contacts with our Members.” The group recognises “the Committee for the Prevention of Torture (CPT)’s competence and crucial role in ensuring respect of legally binding standards on prison conditions in Europe” and considers the Committee’s expertise to be “an invaluable source of useful observations and recommendations”.

S&D noted that “the bodies of the Council of Europe have, in most cases, already established reliable indicators throughout the course of their work and have an overall view of the issues of detention”. The group cited the example of prison overcrowding, which it says has been “clearly [defined] by the European Committee for the Prevention of Torture”. It also stated its intention to cooperate closely with the Council of Europe on this issue, although it did not specify the manner in which it would do so.

These two groups advocate for more minimum standards on prison conditions at the European level.

Greens/EFA wishes to adopt a European directive establishing minimum standards for prison conditions. This instrument would set binding minimum requirements for all places of deprivation of liberty by codifying the existing standards of the United Nations and the Council of Europe. If adopted, each State would be required to respect the standards and include them in its national law.

Prison overcrowding is a major problem in numerous member States of the European Union. The Parliament and the Commission have drawn attention to this issue more than once, including in 2017 and 2022. One third of States have incarcerated more prisoners than their capacity allows. In 2022, France, Cyprus, Italy and Romania held 107 to 124 prisoners for every 100 spaces. These national averages reflect remarkably diverse situations: from one region to another, from one prison to another, and even from one unit to another, occupancy levels can double. In France, 17 facilities or units reached or exceeded 200% occupation in April 2024. Other countries, where the national average may not exceed the total capacity, still experience serious overpopulation in certain prisons and regions. In addition, the methods for calculating prison occupancy differ between member States. These disparities complicate the process of drafting policies to address the problem. S&D refers to the necessity of developing a common method of calculating prison overcrowding.

 This overpopulation has repercussions. The European Court of Human Rights has condemned several member States, sometimes on several occasions, for the living conditions in their correctional facilities.

In at least 15 States in the Union¹, the Court considers the conditions to be a form of inhuman or degrading treatment. The States with the most condemnations on these grounds are France, Romania and Belgium, with nearly a dozen condemnations each.

The indignity of certain prison conditions hinders cooperation between member States in penal matters, as observed by the European Parliament in 2017: “Prison overcrowding obstructs the extradition or transfer of sentenced persons because of concerns regarding bad prison conditions in the receiving State”. The transfer of individuals involved in criminal proceedings on the basis of a European arrest warrant (EAW) relies on the principle of mutual recognition: the judicial decisions rendered by one member State must be enforced by the authorities of other States as if they originated from their own authority.² This principle implies the existence of mutual trust between States. The Council of the European Union indicates that arrest warrants, which are accompanied by strict time frames, must be implemented while respecting fundamental rights. If there is a risk of inhuman or degrading treatment in the receiving State, the authorities of the executing State must postpone the transfer until the risk has been eliminated. In 2021, the possible violation of fundamental rights justified the refusal of 86 arrest warrants. S&D points out that refusing to enforce a European arrest warrant on these grounds could “put a dent in the mutual trust between member States”. It believes that the lack of trust between States could be overcome by establishing minimum standards.

Greens/EFA would like to suspend cooperation within the framework of the EAW with those States whose penal systems have systemic shortcomings.

Various governments present the construction of new prisons as the solution to the violations of rights caused by prison overcrowding. Two groups highlighted the limits of this approach. The Co-Chair of The Left notes that she is committed to “working for a European moratorium on the construction of prisons” and believes that “rather than increasing imprisonment capacities, the prison population should be reduced”. It would like to launch “a European conference on alternatives to incarceration”.

S&D finds that “the construction of new prison spaces will not be enough to solve this equation”. In particular, it feels that the conditions of remand detention must be relaxed, and all prisoners of conscience released.

Greens/EFA highlighted the importance for member States to explore the practicality of alternative penitentiary models, mentioning that the European Union has a role to play in their evaluation. It cited the example of small-scale detention houses and the necessity of gaining visibility on their ability to address the gaps affecting European prisons.

The European Commission encourages States to provide national and European parliamentarians access to correctional facilities. The European Parliament expressed the same desire in 1999. Only certain member States of the Union authorise Members of the European Parliament to visit their places of deprivation of liberty. This is the case in Belgium, Spain and France, for example. Since 2009, this right of access can be exercised without advance notice in France. Since 2015, MEPs can be accompanied during their visit by up to five journalists, including two with cameras or microphones.

 The French branch of the International Prison Observatory published a practical guide for parliamentarians who wish to exercise this right.

The three groups that responded to us all said they had exercised their right of access during the term that is drawing to a close. The Co-Chair of The Left pointed out that some of her group’s elected members regularly visit remand prisons and police custody facilities. This is also the case for Greens/EFA, whose parliamentarians visit prisons in Belgium and Spain. S&D stated that its future MEPs plan to visit places of deprivation of liberty, when it is possible in accordance with national law, in order to observe any violations of fundamental rights and report them to the European Parliament. The group explained its desire to focus on “the prisons responsible for degrading treatment, the countries in which prisoners are fully disenfranchised, and the screening mechanisms for migrants at borders”. Greens/EFA stressed that parliamentarians’ access to prisons, prisoners and documents must be legally guaranteed for effective inspections to be conducted. It said that parliamentarians should be able to receive support from independent experts during their visits.

In these responses, clear distinctions are not made between the various places of deprivation of liberty the three groups plan to visit. They do not explain the different challenges of visiting prisons, centres for the administrative detention of migrants, and police custody facilities. Without details of the procedures for the visits and the preparation of the elected members, it is difficult to assess the potential effectiveness of the planned visits.

Civil society organisations in Europe are committed to defending and promoting prisoners’ rights on various levels, including via advocacy, monitoring, litigation, outreach, and training. These diverse perspectives on prison conditions help provide access to necessary information for public policy development.

The European Parliament recognises that “civil society organisations are important partners”. S&D asserted that “their commitment is essential in giving a voice to human rights, alongside Parliament, and in advocating for the initiation of legislative procedures”. The Co-Chair of The Left reported her commitment to furthering exchanges and cooperation with organisations and associations dedicated to the defence of human rights.

 Parliamentary committees can set up working groups bringing together civil society and deputies to encourage diverse perspectives and incorporate a wide range of positions and interests. The parliamentary groups can also work independently with civil society.

Greens/EFA reflected on its initiatives with civil society during the term now ending: “Our MEPs Diana Riba i Giner and Saskia Bricmont organised an informal transpartisan working group on detention conditions in the European Parliament. Several consultations meetings were organised with key representatives’ organisations of civil society and Council of Europe experts.” It also mentioned the organisation of conferences in Parliament on prisons and the rights of people deprived of liberty. Massimiliano Smeriglio, a non-attached Italian member of the European Parliament, organised a conference on political prisoners in April 2024. Civil society and numerous solicitors’ associations were invited to share their expertise.

The conclusions of these working sessions are likely to be mobilised in Parliament and echoed more widely by other elected representatives in Europe. In the same way, the advocacy performed by certain organisations may be amplified by the deputies.

The European Union finances a large number of penitentiary reform processes involving civil society. The European Parliament votes on the Union’s annual budget, which determines the amount of funds allocated to various political fields, including funding for support programmes in civil society. The MEPs have a role to play in promoting funding for the fields of justice and prison.

The question of penitentiary policies in the Union directly affects prisoners. What access do they have to voting during these European elections?

 The European Prison Rules indicate that the prison authorities “shall ensure that prisoners are able to participate in elections, referenda and in other aspects of public life, in so far as their right to do so is not restricted by national law.”

Convicted individuals are automatically disenfranchised in two member States: Estonia and Bulgaria. This constitutes a failure to comply with Article 3 of Protocol No. 1 of the European Convention on Human Rights, which establishes the right to free elections. Certain States suspend prisoners’ right to vote depending on the nature of the offences committed. The European Court of Human Rights judged that the automatic disenfranchisement of prisoners is in contradiction with the proportionality requirement for sentences.

The organisation and holding of elections do not fall under the authority of the Union, but rather within the competence of each member State. Voting rights thus vary considerably from one country to another. Prisoners do not have the same access to information as people outside of prison – television, radio, and the Internet have a significant cost in prison. There are also material obstacles. As a result, voter turnout among prisoners is extremely low. Greens/EFA stated that its deputies will question the relevant ministers of certain member States concerning the respect of incarcerated individuals’ right to vote. Postal voting is a solution adopted by Germany, Spain and France to make voting easier. Other States, such as Croatia and Poland, set up polling stations in correctional facilities.

To date, there is no one voting system that defines the conditions for accessing and exercising voting rights in prison, in particular for European elections. S&D believes that standardising the process across Europe would help put an end to situations in which incarcerated persons’ right to vote is not respected. The Co-Chair of The Left affirmed her commitment to reinforcing their rights to freedom of speech and participation.

Prisoners remain on the margins of electoral campaigns. However, they are sentenced and incarcerated on behalf of citizens of the Union. The improvement of prison conditions and the respect for dignity in prison are largely absent from the programmes and debates. The groups who answered our questions showed signs of some reflection on the subject, despite proposals which lacked specificity and depth. The others are conspicuously absent. How can the rights of incarcerated persons be brought into Parliament? The silence is deafening.