ABSTRACT
One of the great human rights challenges in prison matters of the last decades is the prison population inflation afflicting many Council of Europe member states and its bad impacts on prisoners' rights. Both the European Committee for the Prevention of Torture and the European Court of Human Rights (ECtHR) have found prison overcrowding under certain circumstances to result in inhuman and degrading treatment. In addition, prison overcrowding generates very poor and bad conditions of detention that hinder the right to legal assistance and to rehabilitation. The mechanisms behind this population inflation are well known: an increased inflow of persons into detention, increased length of detention and/or restricted possibilities of early release. Research consistently illustrates that such developments are more related to national criminal and prison policies than to changes in crime rates. The ECtHR has become an important beacon for the protection of human rights in national penal and prison policies, but with respect for national differences and traditions through the principle of subsidiarity and the margin of appreciation given to the member states of the Council of Europe. This article argues that more “moderate” penal policies, both quantitatively (detention rates) and qualitatively (preparing for reintegration), could and should be sustained by the Court through a more consistent interpretation of the legitimacy of deprivation of liberty under Article 5 ECHR.
