Human Rights Law Review Advance Access published April 21, 2011

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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

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to the systematic denial of human dignity during the Nazi Holocaust, as well as
the Universal Declaration of Human Rights make an explicit link between
human rights and human dignity. Dignity of human beings is the moral and
philosophical justification for human rights and is grounded in the uniqueness
of human beings, their free will, capacity for moral choice and individual auton-
omy. Any deprivation of liberty, also if justified for certain reasons such as the in-
vestigation of crime and punishment of convicts, carries the risk of directly
interfering with human dignity as it severely restricts individual autonomy and
makes detainees powerless. This is the reason why international human rights
law establishes strict limits on States’ powers to deprive human beings of personal
liberty and guarantees the right to human dignity for all detainees. It also pro-
vides that detainees, in principle, shall enjoy all human rights except the right
to personal liberty.1

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.

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Human Rights Law Review (2011), 1 of 4
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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).

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The sections that follow on the progress made at the European level are particularly
fascinating as they track developments of both law and policy, pointing out the
common threads and points of difference between the legal advances and approaches
adopted at the policy levels. Interestingly, the authors show how these differences
relate to the ‘nature’ of the actor that is involved: the fairly conservative, careful
approach by judicial bodies like the ECtHR is contrasted with that of the CPT. Thus,
the ECtHR, while upholding the principle that rights of prisoners could be subjected to
inherent limitations as early as in 1975, has been more reluctant to engage with the
scope of prisoner’s rights that would somehow test the boundaries of its constituent
instrument, the European Convention on Human Rights (ECHR). In striking contrast,
the CPT from its inception has been following a much more flexible approach by not
engaging with the intricacies of setting a legal definition of what constitutes ‘torture’
or other forms of ill treatment. It rather adopted a more hands-on approach geared to-
wards prevention, and by visiting places of deprivation of liberty in states parties, it
‘gradually developed many insights into what prison policy in every European state
should entail in order to prevent abuses’ (p. 17).
The political organs of the CoE, specifically the Committee of Ministers, concen-
trated on developing the so-called ‘soft-law’ instruments through the adoption of vari-
ous resolutions and recommendations. Given that, strictly speaking, these were not of
a legally binding character, the political organs of the CoE were able to make a substan-
tive contribution in advancing European prison policy that went beyond the legally
binding stipulations of the ECHR and the interpretation adopted by the ECtHR. The rela-
tive flexibility of the procedure of adoption of resolutions also allowed a response to
the emerging issues in the European context to be undertaken and set the scene for
future advancement of European prison law.
The chapter finally turns to the EU and its impact on the development of European
prison law and policy and the interaction of its bodies with the existing ones at the
CoE level. It concludes that ‘these bodies have cross-fertilized one another and continue
to do so’ (p. 37), noting that European prison law continues to develop as its various as-
pects are being refined and extended.
Chapter 2 is a unique contribution to the literature as it provides what so many
other books on prison law are lacking: a penological framework. Drawing on various
 Book Review 3 of 4

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);

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good order (Chapter 7); and release (Chapter 8). Each of these chapters scrutinise the
approach adopted by the various European bodies, noting commonalities and points of
departure. Scattered around are some reflections on the extent to which the approach
adopted by the various organs echoes the penological framework set out in Chapter 2.
The final chapter of the book is a synthesis as it presents the evaluation of the re-
sponses of European prison law and policy to the insights about imprisonment offered
by penological research. In previous chapters, the authors examined the details of vari-
ous aspects of European prison law and policy as well as sketched the findings of peno-
logical research on the effects of imprisonment. In the final chapter, the authors offer
an assessment of the extent to which the law and policy at the European level has
been able to respond to the negative aspects of imprisonment, which have been shown
through penological research. With this chapter the approach of the authors emerges
as truly that of collaboration between two strands of social sciences, law and crimin-
ology, which is essential if one wishes to understand the rationale behind various move-
ments advocating for certain reforms in prison law and policy. The strengths and
weaknesses of the existing European prison law and policy are examined, scrutinising
the contributions of various European bodies and extent to which these different efforts
have been mutually reinforcing.
The authors also consider the various options for the future and address the idea of
creating a legally binding instrument on the protection of the rights of detainees in
Europe either in the form of an additional protocol to the ECHR or a separate charter.
Both of these options are considered in detail and the authors note the pros and cons
of each of them. This discussion is particularly interesting in the light of the call
issued by UN Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, Professor Manfred Nowak, to draft and adopt a special UN
Convention on the Rights of Detainees in 2009.2 During the 12th UN Congress on
Crime Prevention in April 2010 he elaborated on the idea further: ‘In the light of some
10 million human beings deprived of personal liberty and their alarming conditions of

2 Ibid.
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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

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authors have managed to grasp the enormous complexity of what constitutes
European prison law and policy. It is precisely this mix of legally binding norms and pol-
itical instruments that do not have the same legally binding effect that has allowed
Europe to achieve the level of protection of prisoner’s rights that the authors call a
‘pan-European ideal of how imprisonment should be used as restrictively as possible
and implemented humanely’ (p. 384). The various actors at the European level, each
drawing upon their strengths of either having political clout or ability to enforce legally
binding decisions or a mixture of both, have achieved a complex synthesis that may
not be susceptible to an easy translation into legally binding norms or at least into
meaningful ones.
This book is a very important contribution to the body of knowledge about prison
law and policy not only in the European context but also beyond the region. The au-
thors have managed to strike the right balance between the examination of law and
policy on the one hand and of penology on the other. This allows those ‘in the driving
seat’ of both law and policy to acquire the requisite background knowledge that is es-
sential if prison law and policy is to be mutually reinforcing and be well anchored in
fundamental human rights principles.
Elina Steinerte
Human Rights Implementation Centre
University of Bristol
doi:10.1093/hrlr/ngr008

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].