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Resolution 1938 (2013) Final version
Promoting alternatives to imprisonment
1. The 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 on certain alternative
penal measures to imprisonment, 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.
2. It takes note with particular interest of the following comparative
data, published in the Council of Europe’s Annual Penal Statistics
(SPACE I – 2010):
2.1. prison populations
in Europe vary considerably from one country to another. Azerbaijan,
Georgia, Latvia, the Russian Federation and Ukraine have more than
double the Council of Europe average of 149 prisoners per 100 000
inhabitants, 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 European countries;
2.2. a number of Council of Europe member States have serious
problems of prison overcrowding. Some 21 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 the worst are: Serbia at 172, Italy at 153, Cyprus
at 151, Greece at 123, Turkey at 115 and France at 108 prisoners
per 100 places;
2.3. the cost of imprisonment to European taxpayers is considerable.
The average cost among Council of Europe member States is the equivalent
of nearly €100 per inmate per day.
3. The 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 because 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 lost contributions to economic and social life
of persons whose rehabilitation is hampered by overcrowding in prison.
4. In 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.
5. The Assembly notes with satisfaction that the United Kingdom
has in recent years successfully phased in and promoted new types
of non-custodial sentences as alternatives to imprisonment, whilst
safeguarding the legitimate security needs of society.
6. In view of the above, the Assembly invites all member States
to vigorously promote the use of non-custodial sentences, in particular
for first-time and non-violent offenders, young offenders and women.
It also invites member States to promote the use of monitoring measures
other than pre-trial detention.
7. It stresses that non-custodial sentences should be imposed
as a replacement for prison sentences and not as a way of further
widening the scope of criminal punishment. Thus, minor offences
which have hitherto not given rise to any criminal sanctions should
not be punished by non-custodial sentences.
8. The Assembly recalls that non-custodial sentences, whilst
clearly preferable to prison sentences in all but the most serious
cases, must 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 (Committee of Ministers Recommendation No. R(92)16),
including:
8.1. the principle of
legality, namely that the measures to be applied, the conditions
for their application and the authorities responsible for their
implementation must be prescribed by law;
8.2. the prohibition of discrimination in the application of
non-custodial measures;
8.3. the 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;
8.4. the requirement of consent, where non-custodial measures
are applied before or instead of formal proceedings or trial;
8.5. the right to review such measures, namely judicial guarantees
and complaint procedures;
8.6. the respect for offenders’ rights to privacy and human
dignity;
8.7. the protection from undue risk of physical or mental injury.
9. The 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:
9.1. fines, which should be calculated
in proportion to the offender’s disposable income in a manner which
permits a comparison with prison terms;
9.2. suspended prison sentences, be they completely suspended
sentences or suspension of the final portion of a custodial sentence;
9.3. early release of a prisoner on compassionate grounds,
in the presence of unforeseen developments concerning a prisoner’s
personal life or health;
9.4. intermittent/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;
9.5. assistance and supervision by probation officers, including
participation in “offending behaviour programmes” (drinking and
driving, anger management, domestic violence);
9.6. drug detoxification/rehabilitation measures (drug treatment
and testing orders);
9.7. community service obligations and “community payback”
measures;
9.8. restorative justice measures actively involving victims
of crime;
9.9. innovative offender rehabilitation programmes involving
civil society, such as the “circles of support” programme in the
United Kingdom;
9.10. curfews, house arrests and restraining or exclusion orders
enforced by technological means.
10. The 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.
11. The Assembly therefore encourages all member States of the
Council of Europe to:
11.1. complete
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;
11.2. develop and test new types and combinations of non-custodial
sentences and community sanctions, whilst respecting the human rights
requirements outlined in paragraph 8;
11.3. exchange 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.