Insights from European and German Prison Law and Practice

Andrea Păroşanu

Dr Andrea Păroşanu is a Research Fellow with the Diana Unwin Chair in Restorative Justice at Victoria University of Wellington

In February 2017, Prof. em. Frieder Dünkel (University of Greifswald, Germany), hosted by the Diana Unwin Chair in Restorative Justice, gave a lecture on “Prison Law and Practice in Germany and the European Context”. He also referred to the role of human rights standards in improving the treatment of prisoners.

Frieder Dünkel started by illustrating the development of prison population rates[1] in Europe. These rates are dependent on the number of entries and the length of stay in prison, and so can only serve indirectly as an indicator of punitiveness.[2] There is great variation in prison population rates across European countries, with particularly low prison rates in Scandinavian countries and high rates in some Eastern European countries, Russia in particular. Among the Western European countries, highest imprisonment rates can be found in England and Wales (146 in 2016), almost double than the German prison population rate (78 in 2016).

Many European countries saw a rise in their prisoner population, particularly during the 1990s and early 2000s. Multiple factors contributed to this rise. Dünkel explained the impact of legislative reforms, increasing minimum sentences for violent, sexual and drug offences, changes in sentencing rules, restriction of early release schemes as well as socio-economic and political factors. However, several European countries experienced rather stable prison populations, corresponding to their strong focus on human rights and having a different political culture.[3] In general, Dünkel highlighted that long term trends are more strongly linked to external factors of a socio-economic, political and structural nature. Short-term developments have to be seen more in association with internal factors of the criminal justice system, such as changes in criminal policy and sentencing rules.

Over recent years, other countries have been successful in reducing their prison population rates, particularly in Central and Eastern Europe. A drastic decline can be observed in Russia or Ukraine, as well as in the Baltic States. Dünkel pointed out several reasons for this development. In the Baltic States, criminal law reforms focused on expanding community sanctions like probation (including electronic monitoring), or early release schemes. Furthermore, legal reforms led to the decriminalisation of minor property offences. In Russia, numerous convictions of the European Court of Human Rights (ECtHR) as well as criticisms made by the Council of Europe[4] have played a role in influencing criminal policy. Since the 2000s, a new crime policy led to a drastic decline in the number of young persons in imprisonment in Russia (-91% from 2001 to 2015). Further factors – besides declining rates of convicted offenders – have contributed to a reduction of prison population rates in Eastern Europe: restricting the use of pre-trial detention, lower minimum sentences for recidivists and shorter prison sentences.

Among a few Western European countries that experienced a downward trend in prison population rates are the Netherlands. The Netherlands have one of the lowest prison population rates in Europe following significant decline since 2006. As a result, several prisons have closed in recent years. Besides declining crime rates, law reforms expanding diversion, community sanctions, crime prevention and rehabilitation programmes have created the conditions for this remarkable change.

Similarly, Germany has a strong focus on crime prevention programmes, diversion and community based sanctions. Dünkel highlighted important principles and features of German prison law.[5] He emphasised that rehabilitation is the only aim of prison confinement. Public safety is a general task of the prison system, best achieved by successful re-integration. This has been repeatedly underlined by the Federal Constitutional Court. Confinement must be organised in a way to avoid the negative effects of prison life, as far as possible, and to facilitate re-integration into society. Of high importance is the principle of normalisation, which means that life in prison should resemble life in the community as closely as possible. Facilitating greater access to prison leave and work release are a few examples of the principle of normalisation.

Dünkel also spoke about the need for well-trained prison staff. In Germany, all staff must have a university degree (three to five years) at a minimum. General prison officers have to undergo two years training, which is mainly in-service training. A strong focus is laid on teaching rehabilitative skills to prison officers, as they should be as integrated much as possible in the daily rehabilitative prison activities.

The Federal Constitutional Court has developed a complex jurisprudence concerning the principle of rehabilitation. As a constitutional principle, rehabilitation aligns with the principle of protection of human dignity and the principle of the social welfare state. If fundamental rights of prisoners have been violated, they may lodge a constitutional complaint to the Federal Constitutional Court. Such institutional issues may in other countries be treated under the European Convention of Human Rights, as Dünkel explained. The opportunity of individual access to the Constitutional Court and the system of complaints procedures for prisoners play an important role in the protection of human rights standards. Moreover, German Prison law relates to international human rights standards such as the European Prison Rules.


Frieder Dünkel is a previous Professor of Criminology and Criminal Law, Dean of Law and Vice-Rector of the University of Greifswald, Germany and the previous president of the European Society of Criminology. He has undertaken many research projects, including international comparative projects on imprisonment, juvenile justice and restorative justice.

References
F. Dünkel (2016): The Rise and Fall of Prison Population Rates in Europe, Criminology in Europe. Newsletter of the European Society of Criminology. Online available at
http://escnewsletter.org/newsletter/2016-2/rise-and-fall-prison-population-rates-europe
D. van Zyl Smit and S. Snacken (2009): Principles of European Prison Law and Policy. Oxford: Oxford University Press.
F. Dünkel, T. Lappi-Seppälä, C. Morgenstern and D. Van Zyl Smit (Eds.) (2010): Kriminalität, Kriminalpolitik, strafrechtliche Sanktionspraxis und Gefangenenraten im europäischen Vergleich (Crime, penal policy, sentencing practice and prison population in a European comparison). Mönchengladbach: Forum Verlag Godesberg.
F. Dünkel and D. van Zyl Smit (2007): The implementation of youth imprisonment and constitutional law in Germany. 9 Punishment and Society, 347-369.
F. Dünkel, J. Grzywa, P. Horsfield and I. Pruin (Eds.) (2011): Juvenile Justice Systems in Europe. Current Situation and Reform Developments. 4 Vol., 2nd ed., Mönchengladbach: Forum Verlag Godesberg.




[1] Prisoners per 100,000 of the national population.
[2] Low prison rates for example can be the result of a low rate of prison sentences and a high rate of alternative sanctions to incarceration, or short length of stay in detention.
[3] See also Dünkel 2016 w. f. r.
[4] More specifically the “European Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment” (CPT), a body of the Council of Europe, which carries out visits to places of detention to assess the treatment of detainees.
[5] Following a constitutional law reform in 2006, legislative competences were transferred to the 16 Federal States which enacted new prison laws.