Inspection and monitoring of prisons: what does European public law require?

The first presentation from the PRILA project (Prisons: the rule of law, accountability and rights, @prila_tcd), which is funded by the European Research Council (2015-StG-679362) was made at the ICON-S Conference in Copenhagen on July 6 2017. You can see the programme for the conference here (the PRILA abstract is on page 210).

The paper examined how European public law has dealt with inspection and monitoring of prisons at the domestic level. Its central argument is that the European Court of Human Rights has not given sufficient attention to domestic inspection and monitoring of prisons, resulting in a lack of guidance about the powers they should have. This neglect has also, inadvertently, resulted in inspection and monitoring mechanisms not receiving the endorsement and support they need from the Court. The key points of the paper are summarised here.

The paper begins by examining inspection and monitoring in European human rights law. It notes the European Prison Rules’ requirement that there be inspection of prisons. The purpose of such inspection is to ensure that prisons are run in accordance with domestic and international law and the European Prison Rules themselves. The paper notes, however, that there is more guidance in the 2015 United Nations Mandela Rules concerning the powers which inspectors should have than in the European Prison Rules. The paper further suggests that the introduction of the Optional Protocol to the United Nations’ Convention Against Torture indicates the importance of domestic inspection and monitoring bodies in the prevention of torture and other forms of cruel, inhuman and degrading treatment or punishment, and that OPCAT also exceeds the European Prison Rules concerning the level of guidance given to those bodies.

The paper then examines the European Court of Human Rights’ assessment of inspection and monitoring bodies. In examining the cases of  Rodić and others v. Bosnia Herzegovina (application no. 22893/05, May 27 2008), Neshkov and others v. Bulgaria, (application nos 36925/10, 21487/12, 73196/12, 77718/12, 9717/13, January 27 2015) Torreggiani v. Italy (application nos. 43517/09, 46882/09, 55400/09), Varga v. Hungary, (application nos, 14097/12, 43135/12, 73712/12, 34001/13,44055/13 and 64586/13, March 10 2015, and Ananyev v. Russia (application nos. 42525/07 and 60800/08), April 10 2012), the paper argues that the Court has focused on preventive remedies on Article 3 to the exclusion of an assessment of the role of inspection and monitoring mechanism. This is an understandable product of the Court’s emphasis in the caselaw on effective remedies on the ability of a body to bring about an enforceable and binding decision in an individual’s case. This is not how many inspectors operate. The focus of inspection in Ireland and in the United Kingdom (and also the focus of OPCAT) is on engaging state authorities in dialogue and prompting reform through the issuance of recommendations and follow up.

The paper argues that states in Europe need more guidance on the powers which inspectors should have. It suggests that this could be provided through a number of possible solutions:

  1. A lack of an effective inspection and monitoring procedure could be argued as a standalone breach of the Convention, likely Article 3;
  2. Inspection and monitoring bodies could be assessed as factors in decisions on whether Article 3 (or other Articles when applied in the prison setting) has or have been breached;
  3. A soft law instrument on domestic prison inspection and monitoring is needed from the Council of Europe.

Related papers will be presented at the Society of Legal Scholars’ Annual Conference in University College Dublin in September 2017 and at the European Society of Criminology Annual Conference in the same month. A comparative piece with US law will be presented at the American Society of Criminology Annual Conference in November 2017. All feedback is very welcome!

Inspection and monitoring of prisons: what does European public law require?

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