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Promoting alternatives to imprisonment

Doc. 13174: compendium of written amendments | Doc. 13174 | Final version

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ADraft Resolution

1The Parliamentary Assembly, referring to its Recommendation 1257 (1995) on conditions of detention in Council of Europe member States, reaffirms the principle that imprisonment should be a measure of last resort. It concurs with the Committee of Ministers, which noted already in its Resolution (76) 10 the tendency to avoid imposing prison sentences as far as possible on account of their many drawbacks as well as out of respect for individual liberty, believing that this process could be taken further without endangering public safety. Community sanctions should be the punishment of choice, except when the seriousness of the crime prohibits any penalty other than a prison sentence.
2It takes note with particular interest of the following comparative data published in the Council of Europe’s Annual Penal Statistics (SPACE I – 2010):
2.1prison populations in Europe vary considerably. Azerbaijan, Georgia, Latvia, the Russian Federation and Ukraine exceed the Council of Europe average of 149 prisoners per 100 000 inhabitants by more than double, whereas Andorra, Bosnia and Herzegovina, Denmark, Finland, Iceland, Liechtenstein, Monaco, the Netherlands, Norway, San Marino, Slovenia, Sweden and Switzerland have imprisonment rates around half the European average or less. Trends over the past decade are generally on the rise in most of Europe;
2.2a number of Council of Europe member States have serious problems of prison overcrowding. Twenty-one member States have more than 100 prisoners per 100 places of detention. According to the Council of Europe’s Annual Penal Statistics, the six countries where the situation is worst are: Serbia, at 172, Italy at 153 prisoners, Cyprus at 151, Greece at 123, Turkey at 115 and France at 108 per 100 places;
2.3the cost of imprisonment to European taxpayers is considerable. The average among Council of Europe member States is the equivalent of nearly €100 per inmate per day.
3The Assembly considers prison overcrowding unacceptable, both as a matter of human rights principle, in particular protection against inhuman and degrading treatment (Article 3 of the European Convention on Human Rights (ETS No. 5)) and of the negative practical consequences of overcrowding for the persons concerned and society as a whole; society stands to suffer from high rates of recidivism and the lost contributions to economic and social life of persons whose rehabilitation is hampered by overcrowding in prison.
4In view of the high cost of building and maintaining new prisons, the Assembly recommends concentrating scarce budgetary funds on improving conditions of detention in existing prisons rather than on expanding prison capacity.
5The Assembly notes with satisfaction that the United Kingdom has in recent years successfully phased in and promoted novel types of non-custodial sentences as alternatives to imprisonment, whilst safeguarding the legitimate security needs of society.
6In view of the above, the Assembly invites all member States, and in particular the States with the highest rates of imprisonment, to vigorously promote the use of non-custodial sentences, in particular for first-time and non-violent offenders, young offenders and women.

In the draft resolution, at the end of paragraph 6, add the following sentence: “The Assembly also invites member States to promote the use of monitoring measures other than pre-trial detention.”

7It stresses that non-custodial sentences should be imposed in replacement of prison sentences and not to further widen the scope of criminal punishment. Also, minor offences which have hitherto not given rise to any criminal sanctions should not be punished by non-custodial sentences.
8The Assembly recalls that non-custodial sentences, whilst clearly preferable to prison sentences in all but the most serious cases, must nevertheless fulfil basic human rights requirements, as specified in the United Nations Standard Minimum Rules for Non-custodial Measures (Tokyo Rules, 1990) and the Council of Europe’s European Rules on Community Sanctions and Measures (1992), including:
8.1the principle of legality, namely the measures to be applied, the conditions for their application and the authorities responsible for their implementation must be prescribed by law;
8.2the prohibition of discrimination in the application of non-custodial measures;
8.3the respect for the principle of proportionality between the seriousness of the offence and the intensity of the afflictive character and the interference of the measure applied with the rights of the offender;
8.4the requirement of consent, where non-custodial measures are applied before or instead of formal proceedings or trial;
8.5the right to review, namely judicial guarantees and complaint procedures;
8.6the respect for offenders’ rights to privacy and human dignity;
8.7the protection from undue risk of physical or mental injury.
9The following non-custodial sentences deserve particular attention, in light of the experience in countries successfully maintaining law and order with a comparatively low rate of imprisonment:
9.1fines, which should be calculated in proportion to the offender’s disposable income in a manner which permits a comparison with prison terms;
9.2suspended prison sentences, be they completely suspended sentences or suspension of the final portion of a custodial sentence;
9.3early release of a prisoner on compassionate grounds, in the presence of unforeseen developments concerning a prisoner’s personal life or health;
9.4intermittent/weekend sentences, allowing an offender to maintain his or her professional and family life whilst being deprived of liberty during his or her free time;
9.5assistance and supervision by probation officers, including participation in “offending behaviour programmes” (drinking and driving, anger management, domestic violence);
9.6drug detoxification/rehabilitation measures (drug treatment and testing orders);
9.7community service obligations and “community payback” measures;
9.8restorative justice measures actively involving victims of crime;
9.9innovative offender rehabilitation programmes involving civil society, such as the “circles of support” programme in the United Kingdom;
9.10curfews, house arrests and restraining or exclusion orders enforced by technological means.
10The Assembly notes that recent technological advances have expanded the potential uses of electronic monitoring devices such as electronic bracelets or GPS, and made them more cost-effective. It considers that such devices, in particular when associated with other, more traditional measures, can expand the scope of non-custodial sanctions to include more serious offences that have hitherto been sanctioned by prison sentences.
11The Assembly therefore encourages all member States of the Council of Europe to:
11.1complete their legislation in the penal field, as necessary, to make available to their judicial authorities the full panoply of non-custodial sanctions providing viable alternatives to imprisonment in all cases where this would be appropriate;
11.2develop and test new types and combinations of non-custodial sentences and community sanctions, whilst respecting the human rights requirements outlined in paragraph [8];
11.3exchange information both on successes and difficulties encountered, making use of the Council of Europe’s instruments for co-operation in the field of criminal law.

BDraft Recommendation

1Referring to its Resolution … (2013) on promoting alternatives to imprisonment, the Parliamentary Assembly commends the Committee of Ministers for its earlier, groundbreaking work on promoting alternatives to imprisonment, in particular: Resolution (65) 1 on suspended sentence, probation and other alternatives to imprisonment; Resolution (76) 10 on certain alternative penal measures to imprisonment; Recommendation No. R (92) 16 on the European Rules on community sanctions and measures; Recommendation No. R (99)19 concerning mediation in penal matters; Recommendation No. R (99) 22 concerning prison overcrowding and prison population inflation; Recommendation Rec(2003)22 on conditional release (parole); Recommendation Rec(2006)2 on the European Prison Rules; Recommendation Rec(2006)13 on the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse; and Recommendation CM/Rec(2010)1 on the Council of Europe Probation Rules.
2In light of recent advances in technology allowing for novel uses of electronic supervision and making them more cost-effective, the Assembly invites the Committee of Ministers to consider addressing a new recommendation to all member States aimed at promoting alternatives to imprisonment with a view to reducing the prison population in Europe, paying special attention to the increased potential of electronic supervision measures, but also to new threats to human rights potentially inherent in such measures.