European Judicial and Institutional Control and its Impacts on National Penal and Prison Policies

Our contribution questions the ability of human rights to soften penal policies and limit the European states’ right to punish in prison in through an overlooked comparison between penal and prison policies pursued by the European Union, the Council of Europe and the European Court of human rights. On the one hand, the Strasbourg Court promotes alternative to imprisonment in its case law on countries facing with prison overcrowding and poor prison conditions. Both the Court and the Committee of Ministers recommend to these member states the development of probation, tagging surveillance; shorter prison sentences, decriminalization of certain offences such as drug offences, and also easier sentence implementation with a view to releasing earlier certain prisoners and fighting prison overcrowding. In the same way, the jurisprudence of the European Court and the CPT standards have potentially some positive effects on the situations in which prisoners can be less punished. In this regard, the case law of the Strasbourg Court has contributed to the release of prisoners whose their very bad health does not allow them to stay in prison, to the transfer of ill prisoners to hospitals and mentally ill prisoners to psychiatric hospitals and so forth. On the other hand, one of the most important practical ways in which the European Union in particular influences prison policies is in the provision of funding for programmes of training, legislative reform, prison construction- all of which ties into the transfer of standards in a 'soft' sense. In this way, what are the negative effects of these programmes of prison construction backed up by the European Union while softened penal policies are promoted by the European Court of human rights? Is there any clash between the EU penal policy and the one sustained by the European Court and the Council of Europe?