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In criminal justice, the question of the place of human rights often focuses on issues relating to imprisonment. However, imposing and enforcing community sanctions, such as probation, community work, or electronic monitoring, may also pose severe threats to the basic human rights of the offenders and their families. The rights potentially affected differ according to the sanction imposed and the stage of the criminal process – human dignity, privacy, and the presumption of innocence are examples of the rights that may be endangered. These rights are generally protected by binding international human rights law as expressed in the International Covenant on Civil and Political Rights or the European Convention on Human Rights. More specific international standards are set by recommendations and other instruments by international bodies. Questions arise, however, about the extent to which these standards are implemented and their impact monitored. These questions are becoming increasingly important as international cooperation, also with respect to community sanctions, increases and sanctions imposed in one country are implemented in another.
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It is indisputable that general legal standards exist that all sanctions must meet. These standards relate to the substance of the sanctions as such as well as to their appropriate imposition and implementation. They can be found in international human rights law and in national legal systems. The key standard is the absolute prohibition of cruel and unusual or inhumane punishment, although historically it has more often been applied to the death penalty and to the implementation of sentences of imprisonment than to sanctions that are implemented in the community.
It is often thought that human rights violations are less likely in the case of sanctions that are not to be implemented in a prison. Moreover, because community sanctions may serve as alternative to prison sentences, such sanctions are seen as benefits or privileges for offenders – as “doing them good.” Therefore, the potential risks that they pose to the rights of offenders are routinely underestimated (Von Hirsch 1990; McNeill 2013) and need to be investigated. Social theorists as diverse as Foucault (1975) and Cohen (1985) have warned that in modern societies, the discipline and control that characterizes prison life may be reproduced within the community when sanctions are enforced there. This is particularly true in countries where a rise in punitiveness (von Hirsch 1990; van Kalmthout and Durnescu 2008; McNeill 2013) has led to many sanctions other than imprisonment becoming harsher, thus transforming measures designed to facilitate the rehabilitation of the offender into measures aimed primarily at supervision and control (van Zyl 1993). In this regard it is noteworthy that more recently scholars have recognized not only the pains of imprisonment but also the “pains of probation” (Durnescu 2011) as posing a potential threat to human rights.
The focus in this research paper is on community sanctions and, to a lesser extent, on related community measures. According to the definition of “community sanctions and measures” adopted by the Council of Europe (1992), they refer to penalties that maintain the offender in the community, that is, outside prison, and involve some restrictions of his liberty through the imposition of conditions and obligations which are implemented by designated bodies. The composite term therefore also applies to diversion, compensation, reparation, and even mediation, as long as these forms of intervention are subject to some form of control by law-enforcement agencies in the widest sense. It does not, however, include noncustodial sanctions such as fines, which do not involve a specific “community” element. In most countries, community sanctions in the sense that it is used here far outnumber sanctions or measures that are enforced in prisons.
Safeguarding Human Rights In The Context Of Community Sanctions
Rights At Risk
As a general proposition, it must be recognized that the human rights of offenders may be infringed by the nature of any sanction which is incompatible with their human dignity: The near universal prohibition on cruel, unusual, or degrading punishment is a specific application of this human dignity standard. A characteristic of the human dignity test is that it recognizes the ability of all people, including offenders, to reflect, to make choices, and to exercise social responsibilities. The right to human dignity may overlap with other rights. An example is a sanction that forces the offenders to express publicly sentiments that they do not hold. That may be inherently humiliating but it may also infringe a related human right to freedom of expression. Other fundamental rights may be infringed if a court were to order that an offender has to marry the mother of his child (the right to marriage and family life) or has to attend church services regularly (freedom of religion) or has to take birth control measures (the right to privacy). All these are examples of “community sanctions” imposed in various jurisdictions, which have been held to infringe human rights (for details and reported examples, see van Zyl Smit 1993).
Human rights violations also occur, arguably more frequently, when a generally acceptable community sanction is imposed for a disproportionately long period or implemented inappropriately. Particularly if the legal prerequisites for such a sanction are not entirely clear and too much discretion is left to judges and enforcement agencies, the suffering may well go beyond what is acceptable from the human rights point of view, either relative to the offence committed or in absolute terms. Here again, human dignity may be at risk, for example, when a community service order is enforced in a way that exposes the offender to dangerous or unhealthy conditions or otherwise unacceptable risks. Another example is electronic monitoring if it exercises such close control that the offender becomes a mere object of this control. Here, of course, the right to privacy is affected as well, and this also refers to the privacy rights of third parties such as the family of the offender. Further human rights issues that may arise from the ways community sanctions or measures are enforced stem from procedural issues, in particular with regard to due process and complaints procedures.
Against the background of prison population inflation and prison overcrowding, as well as the increasing use of noncustodial alternatives to imprisonment that was emerging without much system, international bodies in the middle of the 1980s started to draft comprehensive instruments that would both encourage the use of community sanctions and other alternatives to imprisonment and protect the human rights of those subject to them. All these instruments build on existing human rights codifications, namely, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) on the international level, and, at the regional level, particularly the European Convention on Human Rights (ECHR) but also the American Convention on Human Rights (ACHR) and the African Charter on Human and People’s Rights (ACHPR).
The first international standard minimum rules that dealt with community sanctions were drafted by experts of the United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders. Their development was heavily influenced by a set of rules formulated by an international NGO, the International Penal and Penitentiary Foundation (IPPF 1988), which aimed at creating an analogous and complementary human rights instrument to the pioneering 1955 United Nations Standard Minimum Rules for the Treatment of Prisoners, which were widely accepted throughout the world. The final version of this UN instrument, the Tokyo Rules, as they came to be called after their place of birth, or, more formally, the United Nations Standard Minimum Rules for Non-custodial Measures, was adopted by the United Nations’ General Assembly by consensus in December 1990 (United Nations 1990). The development of the Tokyo Rules (TR) was the result of a “careful process of international consensus building” (van Zyl Smit 1993). It is noteworthy that they focused both on encouraging the use of community sanctions and other alternatives to imprisonment and also, albeit to a lesser extent, to the creation of human rights protections against their abuse (United Nations Office on Drugs and Crime 2007).
European standards in this area were also prepared by governmental and independent experts, nongovernmental organizations such as the European Conference on Probation and Aftercare, and the secretariat of the Council of Europe. However, they were focused more clearly on the setting of standards in order to prevent abuses and to a lesser extent on propagating the use of community sanctions. The key standards were adopted in 1992 by the Council of Europe’s Committee of Ministers in the form of the European Rules on Community Sanctions and Measures (ERCSM) (Council of Europe 1992), which remain the primary regional instrument in this area to this day. They were supplemented in 1999 by a recommendation “concerning prison overcrowding and prison population inflation” (Council of Europe 1999). This latter recommendation, when read with the ECRSM, covers the same area as the Tokyo Rules but gives more details on the measures to reduce prison overcrowding as well as offering additional protection for those serving their sentences in the community. Following a critical evaluation of the ERCSM and their implementation, a further supplementary recommendation was adopted at the end of 2000 (Council of Europe 2000). It largely confirmed the existing ERCSM and concentrated on promoting their dissemination.
More was to follow. A further step was taken in 2003 with the adoption of a recommendation dealing with conditional release/parole, which sought to develop safeguards for persons who serve their sentences in prisons but complete them in the community (Council of Europe 2003). The European standard-setting process continues and most recently led to the adoption of the Council of Europe Probation Rules (CEPR) (Council of Europe 2010). Their rules are meant to be a practice-oriented addition to the existing ERCSM and rightly focus on probation agencies as their practices are crucial for the enforcement of community sanctions in conformity with human rights principles.
In contrast to the abovementioned UDHR, which is legally binding as customary international law (Meron 1989; Alston and Simma 1989), or the ICCPR, which is legally binding on all states that have ratified it, the more specific instruments are “soft law” and take the form of nonbinding recommendations. Nevertheless, they derive a degree of authority and legitimacy from the fact that they passed through a long drafting process that involved many governmental and nongovernmental parties and that they were adopted unanimously by the representatives of the states concerned (van Zyl Smit 1993; Morgenstern 2002).
Absolute limits for the imposition and enforcement of community sanctions and measures can be found in fundamental principles of international human rights law. As mentioned above, the respect for human dignity (Art. 1 UDHR) as well as the prohibition of cruel, unusual, inhuman, and degrading treatment and punishment (Art. 5 EDHR; Art. 7 ICCPR; Art. 3 ECHR; Art. 5s. 2 ACHR; Art. 5 ACHPR) plays a central role in this regard. Other widely recognized human rights, namely, the prohibition of discrimination (e.g., Art. 2 and 3 ICCPR) or general habeas corpus and due process requirements (e.g., Art. 9, 14 ICCPR), equally have to be respected. Consequently, both the Tokyo Rules (TR) and the ERCSM contain general “hold-all” provisions that refer to “norms accepted by the international community concerning human rights and fundamental freedoms” (ERCSM 21 and 22; TR 4). The precise meaning of these norms in the context of community sanctions needs to be specified, however, a task that the TR and the ERCSM undertake.
Both the TR and ERCSM stipulate the need for legal safeguards for every sanction or measure that has a penal content, while emphasizing that the idea of alternative or community sanctions being soft options or even privileges for the offender in comparison with a custodial sentence is wrong. They therefore call for clear and explicit legal provisions on the introduction, definition, and application of community sanctions and measures (that means sentencing and enforcement, especially regarding conditions and obligations and consequences of noncompliance, ERCSM 3, 4, 7, 9; TR 3.1). One of the fundamental principles spelled out clearly by the ERCSM is the concept of proportionality. Thus ERCSM 6 provides:
The nature and the duration of community sanctions and measures shall both be in proportion to the seriousness of the offence for which an offender has been sentenced or of which a person is accused and take into account his personal circumstances.
Similar provisions can also be found in the TR (TR 2.6).
To safeguard offenders’ rights and thus to implement the “legal citizenship” of the offender, both instruments contain detailed provisions on complaints procedures both against the imposition and the enforcement of community sanctions (ERCSM 13 and 15; TR 3.5 and 3.6; Morgenstern 2002; van Zyl Smit 2012). Furthermore, particularly the ERCSM highlight that the cooperation of the offender is crucial for the success of the measure. Both instruments also stress the right to privacy of the offender and his family, which is of utmost importance, on the one hand with regard to the use and dissemination of personal data and on the other hand with regard to visits and other personal contacts.
The Pretrial Stage
If a measure is taken before or instead of a criminal prosecution, it is vital that appropriate steps are taken to recognize the human right of being presumed innocent until proven guilty (Art. 11(1) UDHR; Art. 14(2) ICCPR; Art. 6 ECHR; Art. 8(2) ACHR; Art. 7(1b) ACHPR). Although the scope of this principle may differ between jurisdictions, it is widely accepted that when it comes to the decision on whether or not to detain a suspect, it means that during the pretrial phase, generally, the offender should be left at liberty wherever possible, that is, granted unconditional bail. If unrestricted liberty would threaten the proper functioning of the criminal justice process in some way, there is a presumption in favor of conditional bail or its equivalents, that is, keeping the offender in the community but subject to restrictions. It can be observed, however, that this seemingly undisputed principle is particularly at risk when such alternatives to remand custody are set. Bail conditions may serve, whether intentionally or not, coercive, therapeutic, or even punitive purposes, and what should be (pretrial) community measures easily becomes informal sanctions. Moreover, even when they are not punitive, bail conditions are often introduced merely to allow the alleged offender to make a smooth transition from unconvicted to convicted status (Hucklesby 2011), which neglects the crucial principle that the person affected is still presumed to be innocent. It is essential therefore that whenever pretrial measures serve purposes other than to secure the functioning of criminal process – for example, if they are designed as rehabilitative measures or therapy – then the alleged offender must consent to them being implemented at that stage. The presumption of innocence and its consequences are incorporated in the TR and the ERCSM. With regard to the pretrial stage, the TR only mention the need for pretrial dispositions that include the possibility of discharge for minor offences (TR 5.1) and the need to avoid pretrial detention as far as possible (TR 6, United Nations Office on Drugs and Crime 2007). The ERCSM deal extensively with the question of cooperation and consent as one of the core problems of enforcement (ERCSM 31–36) and require it, as do the TR, particularly where any unconvicted person is involved (ERCSM 35, also CEPR 7; TR 3.4).
Sentencing And Enforcement
According to internationally accepted human rights standards, the key guiding principle to be used in sentencing is that of parsimony, particularly if the use of imprisonment is to be reduced. That implies that imprisonment may only be imposed as ultima ratio, both less often and for shorter periods (TR 2.6). The principle of minimum intervention also applies to the nature and duration of community sanctions, in particular with regard to the number and quality of potential conditions and obligations.
According to the preamble of the ERCSM, the application of community sanctions has to balance the need to protect society and the needs of offenders having regard to their social adjustment. The victims’ interests are only incorporated indirectly in this preamble in the form that CSM must be implemented in a way that allows for “reparation for the harm caused to victims.” It can thus be said that the ERCSM draw mainly on the concept of rehabilitation of offenders: All enforcement activities should gear towards it. The TR contain a similar commitment: They state that the sentencing decision should take into consideration the “rehabilitative needs of the offender, the protection of society, and the interests of the victim.” They add, however, that the victim “should be consulted, whenever appropriate” (TR 8.2).
All these sentencing principles derive from respect for human dignity (TR 3.9). A sanction may infringe human dignity, when its penal content is unacceptable. This relates not only to corporal punishment or to humiliating public confessions, discussed above, but also to excessive sentences whose impact on the offender is unpredictable. Where, for example, the law provides for some form of unpaid work as a noncustodial punishment, it should also require the court to determine the total hours to be worked and in which period this has to be done.
A specific question in this regard is whether a sentence of community service requires the offender’s formal consent before it can be imposed. Although this requirement is not universal, it exists in several European countries (Morgenstern 2010) and enjoys some recognition as an international standard (United Nations Office on Drugs and Crime 2007). This is partly due to national (constitutional) requirements which outlaw forced labor in general terms. The position in European human rights law is uncertain as Art. 4(3) of the ECHR creates an exception in the penal sphere only for work “done in the course of detention … or during conditional release from such detention.” On the face of it, it does not extend to community service imposed directly as sanction in its own right (and not a substitute for prison), which should therefore be regarded as forced labor if no prior consent is gained. However, some scholars would extend the exception in the ECHR by analogy and argue that such consensual community service is not forced labor either (Emmerson et al. 2007). Whether the consent requirement may be circumvented when community service is labelled as exclusively rehabilitative is an open question (van Zyl Smit 1993; Morgenstern 2010). The International Labour Organization, rather than entering the debate directly, stresses that the nature of the work must be adequate for the rehabilitative purpose and may not serve a commercial function if it is to avoid being regarded as forced labor (Eradication of forced labour – General Survey concerning the Forced Labour Convention 1930 (No. 29); Abolition of Forced Labour Convention 1957 (No. 105); Morgenstern 2010).
Similar problems arise with regard to the necessity of consent to medical and psychological treatment as part of a community sanction: Does compulsory psychological therapy violate human dignity or other human rights? The instruments explicitly only prohibit “medical and psychological experiments” and “undue risk of physical and mental injury” (TR 3.4, a similar provision can be found in ERCSM 26). In any case, consent has to be informed and voluntary. The argument that the offender always acts under the threat of an otherwise unconditional prison sentence and therefore is never “free” cannot be dismissed immediately. In the end, however, it is not convincing because it leaves the offender at least the choice between two options, and prison is not always the greater evil (Durnescu 2011; Morgenstern 2010).
Both the ERCSM and the TR recognize that the rights of third parties, namely, the family of the offender but also under certain circumstances the victim are at stake. According to ERCSM 23, “the nature, content and methods of implementation of community sanctions and measures shall not jeopardize the privacy or the dignity of the offenders or their families, nor lead to their harassment. Nor shall self-respect, family relationships, links with the community and ability to function in society be jeopardized.” Particularly intrusive sanctions or forms of enforcement, such as electronically monitored house arrest or even intrusive home visits and interviews by probation officers, may infringe third persons’ rights to privacy and therefore require their informed consent and voluntary cooperation. The same principle applies to victims of crime when they are involved in the enforcement of a sanction as is the case with victim-offender mediation.
Attention must also be paid to the provisions that are made for consequences of an offender’s failure to fulfill the conditions of the community sanction. One aspect that has to be considered in the sentencing process is the burden placed on the offender by conditions attached to the sanction. Even if on the face of it, the burden is not excessive, it may become disproportionate and infringe the offender’s rights if it is enforced too strictly. In the enforcement process, there should be some flexibility in assessing whether there has been substantive compliance with the terms of the sentence. Most importantly, imprisonment should not be the automatic default sentence for failure to fulfill the requirements of the non-custodial sentence (TR 14.1; ERCSM 86). In deciding what further action is to be taken against the offender, other non-custodial possibilities must be considered, and partial fulfillment must be seen as a proportionately positive aspect. In the breach procedure, all due process requirements must be met (broadly spelled out in ERCSM 76-86).
Most countries have mechanisms that allow prisoners to be released before they have completed their full prison terms. Conditional release (parole) both reduces the burden on the prison system and takes into account the principle of minimum intervention by effectively converting (part of) a term of imprisonment into a community sanction. Early release can have a significant rehabilitative effect when it is accompanied by resettlement measures (Padfield et al. 2010). Nevertheless, early release from prison may raise human rights issues: Particular care must be taken to ensure that power to grant early release is not abused to put prisoners under pressure during the prison sentence. Where early release is conditional on good behavior in prison, it is important that the presence or absence of such behavior is determined fairly. The European Court of Human Rights has recognized that a penalty of loss of remission for a disciplinary infringement may be regarded as the equivalent of an additional sentence of imprisonment (Ezeh and Connors v United Kingdom appl. nos. 39665/ 98 and 40086/98, 19 October 2003). The consideration of early release in general must follow the same principles as stated above: It must be based on clear and explicit legal provisions that allow sufficient discretion to make the system flexible but not unpredictable. Conditions imposed should relate either to assisting the reintegration of prisoners into society or to exercising a measure of control on them while they are subject to such conditions, but must not constitute an additional punishment. Like other post-sentencing dispositions, conditional release and requirements attached to it must be subject to review if the offender so chooses (TR 9.3).
Enforcement And Monitoring Of International Standards For Community Sanctions
The impact of international standards depends not only on their formal legal status but on the way in which they are enforced. The TR and the ERCSM are to a great extent the non-custodial equivalents of the respective sets of prison rules developed by the United Nations and the Council of Europe. However, they are less well known, and they do not have the same back up as the prison standards, which at the European level and to a lesser extent at the international level are supported by the monitoring activities of bodies designed to prevent the torture and ill treatment of persons in detention. Even if the ERCSM and the TR are based, in the same way as the prison rules, on the principles of the ECHR and the ICCPR, respectively, almost no jurisprudence by the European Court of Human Rights or of the United Nations Human Rights Committee can be found that deals with the imposition or implementation of community sanctions and measures. This is in stark contrast to the prison rules that are regularly referred to by these bodies when they deal with prison conditions. This lack of wider reference to the rules dealing with community sanctions is regrettable because both sets of rules adopt a highly principled approach towards the human rights-based use of community sanctions and represent what human rights lawyers call “evolving standards of decency” in this field (van Zyl Smit 2006).
It can be argued that the problems of enforcing and monitoring the Tokyo Rules also stem from the fact that they are drafted relatively loosely. For example, TR 1.3 allows implementation of community sanction in a way that “take[s] into account the political, economic, social and cultural conditions of each country and the aims and objectives of its criminal justice system.” This wording reflects the difficulties that are often experienced in arriving at universal understanding and acceptance of one set of human rights (Alston 1994). More often than not, the inclusion of such very general provisions is the price for unanimity in adopting human rights instruments (Morgenstern 2002) and it is certainly a weakness. On the other hand, the official justification for such a provision in the TR – that they are not meant as one single model because they aim at being considered in very different criminal systems – cannot totally be dismissed if one takes into account that the UN had more than 180 member states at the time of their adoption. The situation, of course, is different at a regional or at least at the European level: Notwithstanding divergent interpretations of specific articles of the ECHR, the question of a universal understanding of human rights is not a source of major controversy within the Council of Europe.
Mechanisms to monitor the implementation of the instruments are limited but vary significantly between the two bodies. The United Nations used to collect data and reports on the implementation of their standards and norms including the TR. However, this material had little value because the information provided by the member states was incomplete. As a result, the systematic collection of such information has largely lapsed. The standards therefore are more often used as tool for technical assistance. The TR, for example, served as basis for the “Handbook of basic principles and promising practices on Alternatives to Imprisonment” (United Nations Office on Drugs and Crime 2007) which is used for training courses or seminars in countries who wish to reform this aspect of their criminal justice systems.
For the ERCSM, too, no formal monitoring mechanism is in place, but the Council of Europe tries to provide a follow-up on their dissemination and implementation by way of expert reports and attempts to collect data on community sanctions through its SPACE II program. Increasingly, also the European Union at least indirectly helps to implement criminal justice standards formulated by the Council of Europe by relying on them when developing its own criminal justice policies and projects (see below and Morgenstern 2009, 2011).
Recently, debates about community sanctions and their human rights implications have returned to the penal policy agenda. The rehabilitative ideal may have had been seriously challenged but in many jurisdictions is (again) acknowledged as the key principle governing community sanctions (Robinson 2008; McNeill 2013). It is also being recognized increasingly that the legitimacy of community sanctions is based on perceptions of how fair and humane they are and that human rights standards provide precisely the necessary and generally available criteria for evaluating them (Sparks and McNeill 2010).
How such standards may impact on criminal policy in the field of community sanctions is revealed by recent developments within the European Union: Historically, the European Union showed little interest in criminal justice and human rights-related questions, which were regarded as matters for the Council of Europe that includes all European states except Belarus. When the European Union became more active in crime and criminal justice-related fields in recent years, the engagement was usually associated with more effective law-enforcement instruments, as these were seen as closely related to its economic and political objectives. One more recently adopted EU instrument, however, aims at facilitating the cross-border enforcement of community sanctions within the European Union. The Framework Decision on Probation (Framework Decision 2008/947/JHA of 27 November 2008) will enable all member states of the EU to enforce a foreign probation sanction or measure according to their national practice; the enforcing state generally has to accept the judgment. Its objectives are “facilitating the social rehabilitation of sentenced persons, improving the protection of victims and the general public, and facilitating the application of suitable probation measures and alternative sanctions in case of offenders who do not live in the State of conviction.” Given the very different sanction systems, enforcement modalities, and infrastructures of the 27 member states of the European Union, this is not an easy task, as member states are very reluctant to accept foreign judgments. This particularly refers to an area such as community sanctions where the details of how the punishments should be implemented are still largely shaped by nationally bound cultural norms. A lot of confidence-building measures are necessary, and steps have begun to be taken for EU member states to exchange detailed information about their community sanction systems (Flore et al. 2012). Here the established human rights standards of the Council of Europe come into play because they are already available, have been adopted by an even larger European institution (the Council of Europe to which all EU member states belong), and are based on fundamental common human rights values. They can thus be used as yardsticks or criteria against which national practices can be assessed (Morgenstern 2009, 2011).
Even if we consider that “human rights lawyers are notoriously wishful thinkers” (Humphrey 1973), this can be regarded as a positive development for the rights of those affected who may get to serve their community sentences in their countries of origin. It may be a harbinger of a wider international movement to recognize human rights in the enforcement of community sanctions.
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