Europe: towards a binding legal framework for places of detention

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09 Jun 2021

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Saskia Bricmont has been a member of the Greens and the European Free Alliance (EFA) at the European Parliament since May 2019. She advocates for an open, altruistic and tolerant society and supports those who fight for democracy, human rights and social justice. Here, Saskia discusses a possible binding European framework for minimum standards on places of detention.

The Covid-19 pandemic has laid bare the extreme vulnerability of our prison systems and further demonstrated the necessity of rethinking detention and places of detention within the European Union. As soon as the first lockdown began, these issues were thrust into the spotlight, sometimes in an overly sensationalised manner. Nevertheless, European politicians are now paying attention. 

A European approach to incarceration

In the face of the global health crisis, Member States made somewhat similar decisions in order to prevent the virus from spreading inside penal institutions. Yet there remain significant differences of policy across Member States. The pandemic and its consequences provide an unprecedented opportunity for us to learn lessons about the limitations of European carceral systems, to understand how obstacles have been overcome, and how to discuss and share best practices, especially concerning alternatives to incarceration.

A European approach to these questions is necessary if we are to continue building the European area of freedom, security, and justice. This must go hand in hand with respect for and harmonisation of the rights of incarcerated people, a critical piece of the judicial cooperation puzzle.

The European Union, as a protector of fundamental freedoms, cannot for much longer avoid the need for concerted action on places of detention: prisons, police custody cells, and holding facilities (immigration removal centres) which, to be blunt, are an absolute disgrace to our States. Adding to this shame are the frequent accusations levelled by international bodies responsible for visiting detention facilities and for upholding detainees’ fundamental rights.

To question imprisonment and detention facilities is, inevitably, to question the role of the criminal justice system in our societies. It also means examining the relative severity of a sentence, especially one that deprives someone of their liberty. To reform incarceration, we have to totally rethink the increasingly punitive nature of our justice systems and our societies.

Advocacy at the European Parliament

The Treaties limit the scope of European Union action on prison conditions, which differs from the scope of the Council of Europe in this area. European judicial cooperation is largely dependent on the political will of Member States; however, that does not mean that the European Union is wholly inactive in this area.

The lack of common European standards regarding detention and respect for the rights of incarcerated people hinders the implementation of the very concept of the EU as an ‘area of freedom, security, and justice’. For example, the absence of these standards and poor prison conditions mean that certain Member States do not always enforce European Arrest Warrants. Advancing judicial cooperation is thus closely tied to improving conditions of detention within the European Union.

The European Parliament, as a strong supporter of judicial cooperation and the protection of fundamental rights, may turn out to play a key role. That is why we hope to work towards the adoption of binding minimum standards on detention conditions in the European Union. Community law does not cover this topic, and none of the six directives concerning the rights of accused people and suspects deals with the subject of incarceration.

The European Parliament is not empowered to initiate legislation. Nevertheless, it can act as a forum for political advocacy for co-legislators petitioning for a Directive that would lay out minimum standards.

We advocate at various levels to advance this political goal: we make note of detention conditions in various reports;[1] organise conferences, debates and parliamentary hearings; draft parliamentary questions and other official correspondence; and include these issues in legislative packages, such as that of the European arrest warrant.

Towards a legislative breakthrough?

I hope to continue this advocacy work by establishing an informal working group that will bring together Members of the European Parliament from different countries and parties as well as civil society partners. The goal will be to draft recommendations for the European Commission, the Council and Member States, which, though traditionally more resistant to legislation in this area, have the most to gain from the implementation of binding minimum standards on places of detention.

This task of political advocacy within the European bubble is made possible thanks to the work of professionals in the field and organisations that collect data and information and draft recommendations. They provide vital support for our parliamentary work and I would like to take this opportunity to thank them.

The rights of incarcerated people and the conditions of their detention are fundamental issues. Poor standards in this area reflect the failures of our societies, and improvement in this area is made even more urgent by the pandemic. As a Member of Parliament, I am working with my Green colleagues to achieve this binding European framework for minimum standards on places of detention. This first step must not prevent us from reflecting more deeply on the place and role of incarceration in our societies.


[1] See "Report on the situation of Fundamental Rights in the European Union," published 19 November 2020. (