European standards relating to non-judicial protection of women in prison

Summary

INTRODUCTION

Besides the European Convention on Human Rights (ECHR), which Lech Paprzycki discusses in his chapter in this volume, two other instruments, also emanating from the Council of Europe, have a bearing on the protection of women deprived of their liberty, whether remanded in custody pending trial or serving a prison sentence: the 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), and the European Prison Rules in their revised version of 2006.

Before discussing these instruments, it might be useful - especially for the non- European reader - to briefly explain the political context of their development within the Council of Europe (CoE), to clarify their status in international law and to distinguish them from legislation enacted by the European Union (EU).

As opposed to the EU, a supranational community with competence to adopt legal norms that, under certain conditions, are directly applicable in its member States, the CoE is an international organisation of the classic type. Founded in 1949 by 10 west European States, it is the Continent's oldest international organisation. Today it is also the largest, comprising 47 States, including the 28 members of the EU as well as the central and east European countries that have joined the organisation since 1990. As it was founded in deliberate opposition to the regimes imposed on Eastern Europe by the Soviet Union in the wake of World War II, the organisation has defined itself from the outset ideologically rather than only geographically.

To promote the common values as they are reflected in the basic requirements for membership - pluralist democracy, the Rule of Law, and the effective protection of human rights - the CoE has two legal instruments at its disposal: recommendations, and conventions or agreements. Whereas recommendations - adopted by the Committee of Ministers and addressed to the governments of member States - constitute legal instruments of the CoE (such as the recommendation incorporating the European Prison Rules), conventions and agreements (such as the CPT) do not. Although initiated and elaborated within the intergovernmental work program, they are multilateral treaties that derive their legal force solely from the consent - usually expressed through ratification - of those member States wishing to be bound by them. For that reason, they used to be called ‘European Conventions’, not ‘Council of Europe Conventions'.