Professional Documents
Culture Documents
Human Rights Law Review ß The Author [2011]. Published by Oxford University Press.
All rights reserved. For Permissions, please email: journals.permissions@oup.com
.......................................................................
Book Review
Dirk van Zyl Smit and Sonja Snacken, Principles of European Prison Law
and Policy: Penology and Human Rights (Oxford University Press, Oxford,
2009, xxi þ 464 pp, »75) ISBN 9780199228430 (hb)
In 2009, the United Nations (UN) Special Rapportuer on torture and other cruel, in-
human or degrading treatment or punishment, Professor Manfred Nowak, in his state-
ment to the UN General Assembly, noted:
The Preamble of the United Nations Charter, which was adopted in reaction
This quote sets a perfect backdrop to Principles of European Prison Law and Policy as it
alludes to the careful balance to be drawn between the legal approach to the depriv-
ation of liberty: the boundaries set by international law on the one hand and human
dignity, the protection of which lies at the heart of human rights movement, on the
other. The balance between these two elements lies at the heart of a distinct body of
law, prison law, which is the focus of the present book.
There have been a number of books published over the past couple of years that
examine prison law both at international and European levels. The present one, how-
ever, is markedly different as it approaches the topic from the perspective of socio-legal
research. As the sub-title of the book suggests, the authors have chosen to examine
the topic from the perspective of penology, which makes a unique contribution to the
existing literature on the subject.
1 Statement by Manfred Nowak, Special Rapporteur on torture and other cruel, inhuman or degrading treat-
ment or punishment, 64th session of the General Assembly, Third Committee, Item 71(b), 20 October
2009, at 3.
...........................................................................
Human Rights Law Review (2011), 1 of 4
2 of 4 HRLR (2011)
Chapter 1 sets the background to the current legal protection afforded to prisoners in
Europe by exploring the main historical developments of European prison law and
policy. The chapter is a carefully crafted account of the various developments at the
European level and encompasses initiatives of all the main European actors: the
Council of Europe (CoE) and its Committee of Ministers, the European Court of
Human Rights (ECtHR), and the European Committee on the Prevention of Torture
(CPT) and leads on to the more recent ‘player’ in this area, the European Union (EU). It
starts with a brief account of the development of prison law at the international level,
noting at times the sporadic engagement of UN treaty bodies with issues concerning
rights of detainees and leading to one of the core international instruments in the
area, the United Nations Standard Minimum Rules for the Treatment of Prisoners (UN
SMR). Before moving to a detailed examination of developments at the European level,
the authors briefly touch upon the most recent legally binding instrument in the area,
the Optional Protocol to the UN Convention against Torture (OPCAT), noting that the
impact of this instrument upon the European prison law and policy is too early to
judge (p. 9).
social sciences studies on European prisons, the authors examine the negative effects of
imprisonment upon human beings and track the ways in which prison policies adopted
in various European countries have had a direct impact upon the prison population of
the region in terms of its constituent population and numbers. The chapter scrutinises
the approaches adopted by various European countries towards their respective prison
policies, their struggles to strike the right balance between the need to minimise the
negative impact of imprisonment and the pressure to respond to the general public’s
fears for safety. This is the place in the book in which the authors introduce the core of
their penological framework, the concept of ‘legal citizenship’ that is adopted as one of
the benchmarks for the evaluation of European prison law and policy in the final
chapter.
Chapter 3 sets out the basic principles underlying the current European prison law
and policy as they are utilised by the various bodies operating at the European level.
This can be described as an ‘umbrella’chapter as the following five chapters provide de-
tailed analysis of the five basic cohorts of prison law: conditions of imprisonment
(Chapter 4); the prison regime (Chapter 5); contact with the outside world (Chapter 6);
2 Ibid.
4 of 4 HRLR (2011)
detention, the need for a legally binding and enforceable human rights instrument is
pressing.’3
The abandoned attempts at drafting such a legally binding instrument at the
European level, as examined by the authors, show the challenges that such a propos-
ition has faced in one region of the world. While noting that such a charter could
make a contribution to the systematization of European prison law and policy, the au-
thors note that there was also a danger of creating two different sets of standards for
European prison law as there could be no guarantees that all states would accept the
new instrument. Moreover, and above all, ‘there was the further danger that, in order
to be acceptable to even a bare majority of countries, the Charter would have to be
watered down to such an extent that it would have contained minimal standards,
which would have been much weaker that the CPT standards or the EPR [European
Prison Rules]’ (p. 378). Indeed, as it unfolds the careful balance between the prison
law and policy at the European level, the present book is a testament to the complexity
that a task of drafting a legally binding instrument of detainees’ rights at the interna-
tional level would entail. Concentrating upon just one region of the world, Europe, the
3 United Nations Office on Drugs and Crime, ‘Special Rapporteur Paints Harrowing Picture of Prison
Conditions as Experts Call for Measures to Ensure Respect for Human Rights’, 15 April 2010, available
at: http://www.unodc.org/southerncone/en/frontpage/2010/04/15-relator-especial-da-onu-sobre-tortura-
cobra-melhores-condicoes-em-presidios-no-mundo.html [last accessed 14 March 2011].