Martine Herzog-Evans, France and European Prison Law: Pretend Implementation and Actual Non-Compliance – An Empirical Research in:

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EuCLR, Volume 10 (2020), Issue 1, ISSN: 2191-7442, ISSN online: 2193-5505, https://doi.org/10.5771/2193-5505-2020-1-93

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Varia Martine Herzog-Evans* France and European Prison Law: Pretend Implementation and Actual Non-Compliance – An Empirical Research “The long history of struggles to protect dignity has demonstrated that the other monotonous work of monitoring is crucial”. (Simon, 2018, p. xii) « Le droit international est inconcevable autrement que supérieur aux Etats, ses sujets. Nier sa supériorité revient à nier son existence ». (Viraly, 1964, p. 497) Abstract Prima facie, the implementation of European prison law rules and European Court rulings seems to be facilitated by the French legal structure since it views international and European law as having primacy over national norms. However, in a written law jurisdiction such as France, jurisprudence does not benefit from a very high status and soft low is generally dismissed since it is not binding. Previous legal research has addressed European jurisdictions’ compliance with European human rights law, notably as regards prison matters. However, it has used classic legal reasoning. Few studies have put this issue to the empirical test. Two notable exceptions are Tom Daems regarding Belgium, and Koskenniemi and Lappi-Seppälä’s regarding Scandinavian jurisdictions. This article presents the results of a study pertaining to France’s compliance with the rulings of the European Human Rights Court and the recommendations of the European Committee for the Prevention of Torture regarding prison issues, this by using a combination of Daems and Koskenniemi-Lappi-Seppälä classifications. It finds that, as a general rule, France is non-compliant with prisoners’ European human rights. Additionally, although it has made significant efforts to respond to the overcrowding crisis, France has failed, notably because it has not addressed overcrowding systemic and criminological causes. * The author is Professor of criminal law and criminology at the University of Reims. DOI: 10.5771/2193-5505-2020-1-93 Legal analysis: France’s non-compliance with European law The implementation of European prison law rules and European Court rulings seems, prima facie, to be facilitated by the French legal structure, since constitutionally, it views international and European law as having primacy over national legal norms1. In the case of the Council of Europe system, it also has a ‘direct effect’, which means European prison law can be used during procedures before the domestic courts and is directly implemented without requiring it to be transformed into internal laws2. In such a context, the binding effect of the European Court of Human Rights (hereafter EHRCt)3 should not raise any serious questions. In a written legal system, however, jurisprudence does not benefit from a very high status: written norms are the only binding and enforceable norms. A ruling issued by a given court does not necessarily prevail over other courts. Even the French highest judicial court, the Court of Cassation, whose rulings are, in theory, authoritative can be contradicted by lower courts. Additionally, as a written law jurisdiction, France does not know what to make of soft laws since they are non-binding for institutions and individuals; they cannot be mentioned by the courts in their written rulings; they cannot be invoked by litigants; and they are not even part of the Kelsen pyramid of legal norms4 as it is understood in French law. In this system, a norm ‘is either hard or not law at all’5. As regards prison law, other opposing forces are at play. First, as a legal corpus, its position is rather complex: it is situated somewhere between public law and criminal law. It is situated within what the French legal system calls public law; that is, the specialised set of norms enforced by its own jurisdictions that deals with the conflicts which arise between public administrations, such as prisons, and service users, such as prisoners and their families. Prison law is also situated within criminal law since the rules regulating French prisons are all enshrined in the Penal Procedure Code (PPC), and its logics and concepts (e. g., attempted offence; legitimate defence; legality) apply, notably in disciplinary issues. Other legal domains also play a part, including, inter alia, family law (re: parental rights, prisoner divorce, etc.), labour law (which partly applies to prison work issues), social security law (for those who work, or regarding their medical bills) and the rights of foreigners (many prisoners lose their right to stay in the country whilst incarcerated). The dominant legal domains and jurisdictions, however, are public law and tribunals. This legal jurisdiction puts prisoners and their families at a strong disadvantage, since both public law and administrative courts were created for the very purpose of protecting administrations against effective legal com- 1 F. Sudre, L., Milano, and H. Surrel. Droit européen et international des droits de l’homme (14th ed.), 2019. 2 S. Van Drooghenbroeck, Le droit international et européen des droits de l'homme devant le juge national, 2014. 3 E. Lambert Abdelgawad, The execution of judgements of the European Court of Human Rights. Human Rights Files, n° 19, 2nd ed., 2002. 4 H. Kelsen, Reine rechtslehre, 1934. 5 I. A. Olsson, Four Competing Approaches to International Soft Law, Scandinavian Studies in Law, 2013, p. 17 et seq., spe. p. 187. 94 Martine Herzog-Evans · France and European Prison Law VARIA plaints launched by service users. If their courts have more recently manifested some level of independence from public agencies, such as prison services, it is still in a limited way6. Another limitation pertains to the manner in which French laws are drafted. French prison Bills are presented to Parliament by the Ministry of Justice, but it is within the Ministry of Justice that the Prison Directorate drafts the Bills thus presented. For instance, the Prison Act 2009 was mostly outlined by the prison headquarters in Paris, and this was reflected in the law itself: but for a handful of issues which MPs managed to amend (which was challenging since the Bill was discussed in the context of an emergency session), the Prison Act that was eventually voted was extremely close to the Bill as presented by the prison headquarters. Unsurprisingly, far from advancing the rights of prisoners, it either maintained them or limited them, and, in so doing, mostly presented a fake compliance front to Europe7. Despite this, France is typically perceived as being the ‘good student’ of the Council of Europe, at least from the normative point of view. Shortly after the European Prison Rules (Recommendation Rec(2006)2; hereafter the EPR) were revised, France decided to give them considerable publicity, by publishing a booklet and sending it to each member of its prison personnel. It also created a committee whose task was to award a so-called ‘EPR label’ to the prisons that complied with 8 of the EPR rules, specifically those pertaining to prisoner intake8, thereby creating the appearance of compliance, whilst, in reality, limiting it to a unique EPR section. In essence, France thus instrumentalised soft law rules for a communication operation without truly making it a part of its legal system9. A similar stunt seemed to be at play when the European Probation Rules of 2010 (Recommendation CM/Rec(2010)1) were forwarded to each member of the probation staff and convoked in most of the Prison Directorate’s publications. However, in this instance, it eventually led to the publication of professional guidelines by the Prison Directorate10. This was probably made easier since the Probation Rules are less about human rights and much more about professional practises11. But for these two exceptions, whether they pertain to prison issues per se or to criminal law questions, France ignores the vast majority of recommendations and none of them ever make it into the legal system or are enforced by the courts. France has totally ignored, inter alia, the Recommendation CM/Rec(2012)12 concerning foreign pris- 6 N. Ferran, La personne détenue encore à la recherche de son juge en France, Déviance et Société, 2014, p. 469 et seq. 7 V. Chovgan, Les limitations des droits des détenus : Nature juridique et justification. Doctoral Thesis. Public Law. Université De Reims, Reims, 2018. 8 A. Chauvenet and D. Rambourg, De quelques observations sur la mise en œuvre des règles pénitentiaires européennes, Ministère de la Justice, ENAP, 2009. 9 C. Gaffuri and J. Fromget, L’accueil des détenus dans les prisons Françaises, 2011. 10 Administration Pénitentiaire, Référentiel des Pratiques Opérationnelles dans la Probation, 2018. 11 D. van Zyl Smit, S. Snacken and D. Hayes, ‘One cannot legislate kindness’: Ambiguities in European legal instruments on non-custodial sanctions. Punishment & Society, 2015, p. 3 et seq. Martine Herzog-Evans · France and European Prison Law 95 EuCLR Vol. 10, 1/2020 oners, the recommendation R(92)17 concerning consistency in sentencing, and recommendation CM/Rec(2014)4 concerning electronic monitoring. Legal analysis reveals quite evidently that France usually does not comply with European human rights regulations. After the Prison Act of 2009, presented as a form of compliance, but in reality, the exact opposite12, a recent law of March 23, 2019 (n° 2019–222 programming law 2019–2002 and for justice) directly violated the EHRCt’s jurisprudence. Article 57 of the Prison Act (2009) had regulated strip searches and other prisoner body searches; it was the Act’s only manifestation of true compliance with the EHRCt’s jurisprudence (and in particular with the Khider v. France13, Mouisel and El Shenawi v. France14 cases). It notably included principles such as probable cause, necessity, proportionality and subsidiarity. The law of March 2019 takes place in the context of the 2015 and onward terrorist attacks, and the consecutive, undeniable stiffening of the French body of law and law enforcement institutions to the point where the legal doctrine has expressed the fear that criminal law and war laws are becoming increasingly similar15. Since prison officers have also increasingly become the target of terrorist attacks within prisons, the prison services got their way and obtained what they had been advocating for since 2009, i. e., the annihilation of article 57. This norm has now been rendered useless since it states that strip searches can be ‘systematic’ for a rather light reason: ‘the constraints imposed on the prison public service’. There is no doubt whatsoever that this violates three of the four principles which typically justify infringements on non-absolute human rights (in this case, private life as per art. 8§ 1). It may be ‘in accordance with the law’, but it is conversely not justified by public security or any other legitimate reason as per article 8§ 2. Moreover, it is certainly not in accordance with what a democratic society’s intentions should be and is nothing but disproportionate. The EHRCt’s rulings that directly pertain to France have not been greeted with any more respect. As an example, France has blatantly ignored the decisions that have concluded that it violated article 13 regarding the effectiveness of the judicial review of prison disciplinary sanctions (Payet v. France16; Cocaign v. France17; Pathey v. France18). None of these decisions has been followed by a reform or, at least, by the national courts manifesting some level of compliance. Quite the opposite, the Council of State (Conseil d’Etat, hereafter C.E.), France’s highest administrative court quite cynically persisted in considering that since an administrative law summary procedure existed, disciplinary procedures actually met article 13 principles (C.E. 28 Dec. 2012, 12 Chovgan (fn. 7). 13 Khider v. France, Application no 39364/05, Judgement 9 July. 2009. 14 El Shenawi v. France, Application n° 51246/08, Judgement 20 January 2011. 15 J. Alix, L’hypothèse de la guerre contre le terrorisme. Implications juridiques, 2017. 16 Payet v. France, Application n° 19606/08, Judgment 20 January 2011. 17 Cocaign v. France, Application n° 32010/07, Judgment 3 November 2011. 18 Pathey v. France, Application n° 48337/09, Judgment 10 November 2011. 96 Martine Herzog-Evans · France and European Prison Law VARIA n° 357494). In reality, this very court repeatedly denies prisoners the right to use the summary procedure in question in order to challenge disciplinary sanctions19. Legal analysis is not enough to account for the reality of the implementation, or lack thereof, of legal norms. An in-depth qualitative study was published in 201120 that showed that in a few regional jurisdictions, prisoner intake—the only European Prison Rule supposedly being implemented at the time—was in fact not completely in place. Several years have passed since then, and particularly in view of the changes in the prison system following the terrorist attacks, it seemed time to empirically situate where France stood regarding the implementation of European human rights laws regarding prisons. Such an endeavour would naturally have to be grounded in the extant literature. Testing non-compliance empirically The vast majority of studies that pertain to European control over European prisons21, or to a given state22, or relative to the European corpus of prison-related norms and jurisprudence,23 are legal in nature. They tend to describe what the state of the law, or jurisprudence, is and, in some cases, to make comments regarding its insufficient implementation24. With the exception of comparative lawyers25, only a handful of authors have explored these issues other than from the purely legal viewpoint. A recent publication by Fouchard and Simon26 did explore some of the paradoxical effects of human rights in French prisons, such as the right to life or the right to an effective remedy, whilst others have focused their attention on issues of suicide and prisoner health27. They nonetheless have essentially described the state of the law and of national case law, although Cliquennois and colleagues also included a critical sociological viewpoint. 19 M. Herzog-Evans, Droit pénitentiaire, 2019. 20 Gaffuri & Fromget, (fn. 9) 21 G. Cliquennois & H. De Suremain (Eds.), Monitoring penal policy in Europe, 2017. 22 e. g., regarding France: J.P. Céré, Le contentieux disciplinaire dans les prisons Françaises et le droit Européen. 2000; B. Belda, Les droits de l’homme des personnes privées de liberté : Contribution à l’étude du pouvoir normatif de la Cour européenne des droits de l’homme. Doctoral Thesis. Public Law. Université Montpellier 1, Montpellier, 2007. Regarding England and Wales: S. Foster, Human rights and civil liberties, 2011. 23 D. van Zyl Smit and S. Snacken, Principles of European law and policy, 2009. 24 Cliquennois & De Suremain, (fn, 16). 25 e. g., J. Flaxa, Le droit disciplinaire pénitentiaire : Une approche Européenne. Analyse des systèmes Anglais, Gallois, Espagnol et Français à la lumière du droit Européen des droits de l’homme. Doctoral Thesis. Criminal law. Thèse Université de Pau et de Salamanque, Pau, 2014; Chovgan (fn. 7). 26 I. Fouchard and A. Simon, Les revers des droits de l'homme en prison, 2019. 27 G. Cliquennois and B. Champetier, A new risk management for prisoners in France: The emergence of a death-avoidance approach. Theoretical Criminology, 2013, p. 397 et seq.; G. Cliquennois and M. Herzog-Evans, European monitoring of Belgian and French penal and prison policies. Crime, Law and Social Change, 2017, p. 113 et seq. Martine Herzog-Evans · France and European Prison Law 97 EuCLR Vol. 10, 1/2020 The lack of empirical data may thus have given these authors the impression, notably by comparison with Belgium, that France was indeed not such a bad ‘student’ after all. Two recent reports, one by European institutions themselves28 the other by a third sector agency29, have collected statistical and legal data. This allowed them to point to a series of implementation gaps at a European level, particularly regarding prisoner health and prison overcrowding. Since they focused on the whole of Europe, their main limitation consisted observing trends from far too general a viewpoint. They cannot tell us much regarding the implementation of European human rights law in a given jurisdiction. A more interesting study focused on no less than 21 European states and presented the immense advantage of quantitatively studying sentencing decisions inflicted from 1990 to 201530. The authors’ main conclusion is that the impact of the EHRCt is limited, if not insignificant. They also point to the fact that the worst jurisdictions regarding compliance with the Court’s rulings are in the following order: Russia; Rumania; Greece; Hungary; Bulgaria; Ukraine; and France. It is within this rather spare31 empirical legal tradition32 that the author of this article decided to explore France’s compliance with European human rights law and those regarding prisons. Only two studies appear to have examined this particular issue empirically. In addition to inspiring the research reported here, they have offered a methodological framework. The first case is that of Belgian author Tom Daems33. Daems focused on the implementation of the Committee for the Prevention of Torture (CPT) reports regarding Belgium prisons. Unfortunately, he limited his investigation to the published interactions between the CPT and Belgium. However, this limitation was compensated to a great extent by the long period of time covered by his study (1993 to 2012). Other than his conclusion that there was a significant implementation gap, Daems proposed a particularly interesting typology for member states’ potential reactions to the CPT’s comments and recommendations: (1) ‘We fully agree and follow up’; (2) ‘You’re wrong’; (3) ‘It’s not our fault’; (4) ‘In reality, everything works perfectly’; (5) ‘We don’t contest your findings, but we won’t change anything’; (6) ‘We don’t 28 R. Raffaelli, Prison conditions in the Member States: Selected European standards and best practices. European Parliament. Policy Department C: Citizens' Rights and Constitutional Affairs. Briefing on Civil Liberties. PE 583.11, 2014. 29 A. Maculan, D. Ronco, F. Vianello, and A. Edizioni, Prison in Europe: Overview and trends, 2013. 30 D. Anagnostou and D. Skleparis, Human rights in European prisons: Can the implementation of Strasbourg Court judgments influence penitentiary reform domestically? In T. Daems/L. Robert (Eds.), Europe in prisons. Assessing the impact of European institutions on national prison systems, 2017, p. 37 et seq. 31 but see M. Herzog-Evans, French reentry courts and rehabilitation: Mister Jourdain of désistance, 2014. 32 see e. g., P. Canet and H.M. Kritzer (Eds.). The Oxford handbook of empirical legal research, 2010; L. Epstein and A.D. Martin, An introduction to empirical legal research, 2014. 33 T. Daems, Slaves and statues: Torture prevention in contemporary Europe. British Journal of Criminology, 2017, p. 627 et seq. 98 Martine Herzog-Evans · France and European Prison Law VARIA contest your findings, but we cannot change anything’; (7) We need to investigate this’; (8) Answers that raise new questions; (9) Partial answers; and (10) No answer. The following year, two Scandinavian academics34 decided to follow in Deams’s footsteps and replicate his work in the Scandinavian prison context. Interestingly, they also added a study of the compliance with the EHRCt rulings. They proposed to regroup Deams’s ten responses into five categories (‘We are trying’ or ‘information provided’): (1) Acceptance; (2) Denial/disagreement; (3) Non-compliance; (4); Evasion; and (5) Information provided. They concluded that the dominant response in Nordic jurisdictions was denial/disagreement with evasion and acceptance second. Although Koskenniemi and Lappi-Seppälä’s list is, at first glance, simpler and more conceptual, it did not reflect the great variety of situations and responses encountered in the study reported here as well as did Daems’. The present research: empirically testing France’s compliance There was one main question for this research: Where is France with regards to compliance with the EHRCt rulings and the CPT’s recommendations in prison matters with regards to Daems’ typology? This study was conducted by the author, who benefitted from the contribution of several Master students: Lisa Becquet, Margaux Henry, Pauline Perez, and Nathan Sacksteder. I was in charge of defining the protocol and ensuring its consistent compliance. The students and the author gathered the data, coded it together and published a joint paper in a French law journal (Herzog-Evans et al., 2019). Initially, the goal was to compare England, France and Belgium. However, due to our Belgium colleague relocating and the different French/English university timings and, in the case of England, to the extremely different legal and political context, the research team was not able to produce comparative data on time or to pool our results. The team nonetheless chose the UK Human Rights Act entry into force (October 2, 2000) as the starting point for the study. The year 2000 was also a particularly important date in the French prison landscape. In 2000, a so-called ‘Vasseur effect’35 occurred. The lead physician at La Santé (Paris) prison published a book which described in great detail this prison’s atrocious detention conditions, including its rats and cockroaches and, in addition pointed to high rates of depression and suicidal ideations or attempts and the skin and respiratory diseases that plagued this setting36. Because this Parisian prison notably housed VIP prisoners (former politicians and CEOs), it drew considerable attention from the media. For several months, it made the headlines, and 34 L. Koskenniemi and T. & Lappi-Seppälä, Assessing the role of European monitoring instruments and their impact on prison conditions in the Nordic countries. In G. Cliquennois & H. De Suremain (Eds.), Monitoring penal policy in Europe, 2018, p. 104 et seq. 35 M. Herzog-Evans (fn, 14). 36 M. Vasseur, Médecin chef à la prison de la Santé, 2000. Martine Herzog-Evans · France and European Prison Law 99 EuCLR Vol. 10, 1/2020 two Parliamentary commissions37 issued damning reports about French prisons in general and calling for change. The Senate even titled its report ‘A shame for the Republic’. This led to some level of change: in 2007, the prison Ombudsman was created (Contrôleur general des lieux de privation et de liberté – CGPL); and, in 2009, a rather lukewarm Prison Act came into force38. As did Koskenniemi and Lappi-Seppälä’, for this study, it was decided to focus on France’s response to both the CPT recommendations and the EHRCt’s and decisions. The first step thus consisted of gathering all the CPT’s recommendations to France pertaining to prisons since 2000 and all the EHRCt rulings which had afterward condemned France. The research protocol which the author of this article designed defined ‘prison’ (in French, by reference to two words, ‘prison’ and ‘pénitentiaire’) as exclusively including pre-trial detention and prison sentences served in a prison setting (établissement pénitentiaire), again, in the French sense of the term. It notably excluded psychiatric detention, police detention, immigrant detention, customs detention or other administrative detention, which are all regulated by a very different set of rules. In order to locate the EHRCt rulings, the Council of Europe’s own databank, HU- DOC, was used, and these results were completed by a google search and a doctrinal search. Using the key words ‘prison’ and ‘pénitentiaire’ and focusing exclusively on cases relative to France, the team initially drew no less than 157 decisions. However, a number of filters had to be applied. The first filter consisted of removing the decisions which actually did not pertain to prisons per se but were brought up because they contained the word ‘prison’. Most of them pertained to foreigner or administrative detention. A second filter led to the removal of the decisions where France had not been condemned by the European Court. A third filter consisted of removing overlapping decisions, as several cases had gone through a rather complicated procedural process leading to several decisions. In such cases, only the leading decision (e. g., the grand Chamber’s) or the decision which had considered the application of the merit, and not merely focused on its admissibility, were eventually kept. The three filters brought the sample down to 24 decisions. We conducted a similar search in the CPT’s reports pertaining to its visits to France since 2000; i. e., in 2000, 2002, 2003, 2004, 2006, 2008, 2010 and 2015. Because the CPT only deals with the deprivation of liberty, it was easier, if not painstaking, to isolate its comments and recommendations which actually pertained to prisons. The 2002 report also had to be removed as it turned out to only pertain to foreigners’ detention at Roissy-Charles de Gaulle airport. Only seven reports in total were thus included. 37 One for the Senate (J.-P.Cabanel, (rapporteur) Prisons : Une humiliation pour la République, Rapport de la commission d’enquête sur les conditions de détention dans les établissements pénitentiaires en France. Senate, 2000, no 449); the other for the National Assembly (J. Floch, (rapporteur) (2000). La France face à ses prisons, rapp. de la comm. enquête sur la situation dans les prisons françaises, National Assembly, 2000. 38 Chovgan (fn. 7). 100 Martine Herzog-Evans · France and European Prison Law VARIA The second step of the study involved conducting an in-depth analysis of our raw data (the 24 rulings and 7 CPT reports). The team proceeded in several steps. Six main thematic issues were uncovered, regarding detention conditions; discipline and good order; use of force or constraints and staff’s behaviour; health; family ties and contact with the outside world; and political and civic rights. Next, we uncovered several subthemes within these main themes. For instance, health included prisoner suicide and access to treatment. In order to facilitate the analysis and to allow for the merging of the data concerning the CPT and the EHRCt, the same categorisation system for both was used. In some cases, however, the internal subdivisions had to be readjusted. Indeed, the seven CPT reports in the sample contained no less than 144 recommendations made to France. Additionally, the requests were very diverse. Some of them had a very wide scope, such as to implement a concrete anti-overcrowding strategy, which was present in the reports for 2003, 3004, 2006 and 2008. Conversely, other recommendations were very detailed and only pertained to a particular prison. Such was the case for a recommendation made in the 2006 report and pertaining to Fresnes: to refurbish the third floor and to repair the alarm system in each cell. After several months, several dozen pages, both and separately for the CPT and the EHRCt, were thus produced. It was then time to initiate the study’s third step and to look for the responses given for every single one of them. It consisted in a systematic search for the initial official responses provided for by the French government to the CPT and then, for France’s subsequent responses in the form of law reform, institutional changes, local repairs, and so on. There are, of course, no initial official responses provided by governments to the EHRCt’s decisions. We thus only searched for reforms and institutional or other changes which had happened at any point since each ruling had been issued. This meant that there were two columns pertaining to France’s responses for the CPT (initial response and ultimate response) and only one for the EHRCt (ultimate response). The team stopped collecting data at the end of 2017. Therefore, each of the ultimate responses given by France had to have happened prior to this date. To fill in these columns, the team had to conduct a considerable amount of research. It first consulted all the legislative and decretal reforms which had taken place since the recommendation or court ruling; all the infra-normative texts (circulars and ministerial notes or shorter ‘dispatch’ notes [dépêches]) published during this time, along with the parliamentary debates on prison and prison related issues. These made for an industrial number of documents since France is notoriously plagued with ‘normative inflation’39. The team then read the total sum of reports and statements published by the Prison Ombudsman’s services (hereafter CGLP, for contrôleur general des lieux de privation de liberté): their annual reports; their thematic reports; their multiple reports pertaining to the individual prisons that were blamed in CPT reports or EHRCt decisions; 39 P. Januel, L’inflation législative est pour le Conseil d’État une préoccupation récurrente. Dalloz Actualités, 2018, Retrieved on 3 August 2019 from: https://www.dalloz-actualite.fr/flash /des-indicateurs-pour-mesurer-l-inflation-normative#.XUUqIugzaUk. Martine Herzog-Evans · France and European Prison Law 101 EuCLR Vol. 10, 1/2020 and their thematic statements that had been published in the Journal Officiel de la République Française (JO) which is the official publication site for laws and decrees, where the CGLP is legally entitled to publish statements in order to draw attention to a given subject (e. g., women and babies in prison; transgender inmates, etc.). Importantly, the CGLP reports systematically refer to the European law and case law corpus. This extremely rich and dense material does not, however, provide an analytical vision of the state of France’s compliance with European law. It can be considered as representing raw data which can be exploited and analysed by researchers. It thus constituted the ground raw data which the team needed to fill in every cell of our thematic grids. In other situations, compliance with European law is to be located within the ensemble of decisions made by national courts. For this reason, the team and the author had to analyse all the court cases, whether judicial (criminal courts, civil courts, and so on; at either first trial level, appellate level or supreme level with the court of cassation) or administrative (administrative tribunals, court of appeals and Council of State). We thus analysed sixteen years’ worth of jurisprudence and this also led to reading a great number of doctrinal comments to better understand this corpus’ sense and scope. Lastly, the local, national and international press were also consulted. The study’s fourth step could now start. It consisted in classifying considerable amounts of data into the pre-defined categories in the table. Regarding the ‘initial response’ to the CPT’s recommendation column, Daem’s classification worked well. Conversely, regarding the ‘ultimate response’ column, and in this case both for the CPT and the EHRCt, it proved rather difficult. In order for a comparison between initial and ultimate responses to work, Daem’s and Koskenniemi and Lappi-Seppälä’s typologies had to be reshuffled as follows: § Total lack of implementation. These were cases where no change whatsoever had happened and where France had not taken the recommendation or decision into consideration at all. § Fake or stereotyped implementation. These were cases where France had given the false impression that it was about to make changes, or intended to make changes but where such changes had been superficial, or where France did not truly intend to comply with Europe’s requests. § Partial implementation. This category included several situations. In some cases, France had indeed ‘reformed’, but it had done so in sub-normative fashion, such as circulars or internal regulations without much scope and no binding effect. Some partial implementation occurrences were also included in this category where concrete and material circumstances had indeed been changed but only partially. Lastly, this category included cases where changes had taken place but where one could document that, in the more distant past, the situation in these domains had in fact been less negative. § Implementation. Two situations were included in this category. In the first situation, the recommendation or the court ruling had full compliance. In other situations, nothing had changed, but it could be documented that the French govern- 102 Martine Herzog-Evans · France and European Prison Law VARIA ment had been correct in saying that it was already compliant with what it was told to do or change. § Things have gone worse. These were situations where one could document that the situation had in fact worsened since the recommendation or ruling. Once the data was thus classified into several hundred pages worth of data, they had to be turned into raw statistics. Since this research’s goal was simply to document facts, and not to establish causality or correlation, no statistical manipulation was required. Main findings: dismissal and disregard for European law The study’s results pertaining to the EHRCt’s rulings shall be before the CPT’s recommendations. For the EHRCt, only one set of responses is presented since governments do not issue initial responses to its rulings. Conversely, for the CPT, both the initial and the ultimate responses are presented. The data are then merged in order to get an overall picture of France’s attitude towards European human rights regarding prisons. The figure below is particularly revealing. France’s ultimate responses to the EHRCt 3% 6% 56% 19% 16% Things have gone worse Fake implementation Total lack of implementation Partial implementation Implementation France complied fully with the European Court’s rulings pertaining to prison issues by making changes in its laws or jurisprudence in only 16 % of the cases. Conversely, it has done absolutely nothing in 56 % of the cases. If one adds cases of fake implementation, partial implementation only and instances where things have actually worsened, it comes to a sum total of 85 % of the cases where France has behaved in a noncompliant manner. Figure 1: Martine Herzog-Evans · France and European Prison Law 103 EuCLR Vol. 10, 1/2020 Regarding the CPT, France initially seemed to be more willing to take the recommendations seriously, although this apparent compliance was in fact misleading. Moreover, when one analyses further down the line what France has actually put in place, as with the EHRCt’s rulings, the findings are depressing. France’s initial response to the CPT In the following case, in view off the diversity of France’s initial responses to the CPT’s recommendations, a pie graph would have not adequately depicted them. A mix table/graph seems preferable. As can be seen, it refers to Daems’ classification, and each of its exact number as presented supra. To better understand the following figure, one must realise that in several instances, France responded with mixed messages, referring to several of Deams’ typology items. France’s initial response to the CPT (1) 'We fully agree and follow up' (4) 'In reality ecerythi ng works perfectl y' (2) 'You're wrong' (6) 'We don't contest your finding s, but can't change anythin g' (9) Partial answer (10) No answer (7) We need to investig ate this (8) Answer s that raise new questio ns (3) It's not our fault (5) We don't contest your finding s, but we won't chang Per cent 41 % 31 % 8 % 7 % 5 % 3 % 3 % 1 % 1 % 0 % 0 % 5 % 10 % 15 % 20 % 25 % 30 % 35 % 40 % 45 % (1) 'We fully agree and follow up' (2) 'You're wrong' (9) Partial answer (10) No answer (8) Answers that raise new questions This figure shows that the first official response formulated by France as published on the CPT website expresses more agreement than the ultimate responses we pointed to regarding the EHRCt. In 41 % of the cases, France states that it is in total agreement and intends to follow up. Yet, the seeds of dismissal or disregard for Europe’s recommendations are already apparent in a number of cases. If one adds ‘we don’t contest… but… (7 %), ‘partial an- Figure 2: 104 Martine Herzog-Evans · France and European Prison Law VARIA swer’ only (5 %), ‘we need to investigate’ (3 %), no answer at all (3 %) and answer that raises more questions (1 %), 19 % of the responses did not augur well for France’s compliance. As a matter of fact, agreement is nearly matched by disagreement. If one adds ‘in reality everything works perfectly well’, ‘you’re wrong’, and ‘it’s not our fault’, no less than 40 % of France’s responses express denial and dissent. If one also adds the aforementioned signs of future dismissal to these disagreements, we reach a sum total of 59 % of negative responses. Since, there was no guarantee in the first place that the 41 % of cases where France seemed to agree would lead to action, it is unsurprising that inaction has in fact more often than not ensued. France’s ultimate response to the CPT France’s ultimate response, several years down the line, and in some cases many years after the initial recommendation, is essentially not compliance. France’s ultimate response to the CPT 6% 13% 24% 26% 31% Fake implementation Things have gone worse Partial implementation Implementation Total lack of implementation France has complied with the CPT’s recommendations in only 26 % of the cases. Conversely, in 31 % of the cases, it has purely and simply done nothing. If one adds such blatant cases of non-compliance to instances of fake implementation, partial implementation, or where the situation has, as a matter of fact, worsened, we find that in 74 % of the cases, France has not complied. Figure 3: Martine Herzog-Evans · France and European Prison Law 105 EuCLR Vol. 10, 1/2020 France’s overall ultimate responses The ultimate responses which France gave the Council of Europe, regarding both the EHRCt and the CPT (counting each ruling or recommendation as a single case), reveal similar trends. : France’s overall ultimate responses 6% 11% 23% 24% 36% Fake implementation Things have gone worse Partial implementation Implementation Total lack of implementation What this study has found is that France has, in reality, submitted to the two European bodies’ recommendations or rulings in 24 % of the cases. In no less than 36 % of the cases, it has done absolutely nothing to comply. If one adds these flagrant cases of noncompliance to instances of fake implementation, partial implementation, or where the situation has as a matter of fact worsened, we find that in 76 % of the cases, France has, overall, not complied with European demands or recommendations. Prison overcrowding: inefficient compliance In view of such negative results, I felt it would be interesting to dig a little deeper into an issue which has regularly caught the attention of the European bodies – that of prison overcrowding. This issue is interesting because, on the one hand, France has done a lot to comply; on the other, the outcome of France’s actions is very negative. In such cases, I classified these attitudes in the ‘partial compliance’ section. At face value then, France has not complied at all, but in terms of its attitude towards Europe, it paints a more positive picture. Figure 4 106 Martine Herzog-Evans · France and European Prison Law VARIA Regarding the first issue, France has been identified at both a national40 and a European level41 as having chronic overcrowding and has not been able to put a stop to this phenomenon. The present study shows that both the EHRCt—culminating with Canali42—and the CPT in most of its reports (and notably in those of 2003, 2004, 2006, 2008 and 2015) have repeatedly asked France to find solutions to this challenge. Statistically, France’s incarceration figures have continuously increased over the last decades. On January 1, 2019 there were 71,710 prisoners versus 70,710 the year before43, 69,375 in 2016 and 66,864 in 201544, but 58,402 in 200745. On April 2019, it was announced that France had yet again reached a new record, with its new total of 71,828 prisoners46. This increase does not per se represent a lack of compliance, so long as the prison estate provides one bed and one cell to every single prisoner. The reality, however, is that most prisoners serving their sentence in a remand and short-term jail (maison d’arrêt) share their cell with two, three, four and, in some cases, even more other prisoners. Yet the French prison services have managed to mask this reality by only counting overcrowding as representing an added prisoner in a cell where each bunk bed is occupied. Thus, a minuscule cell with four prisoners, each with their own bunk bed, is not deemed overcrowded; overcrowding is only counted when a fifth prisoner has to sleep on the floor in the middle of the four bunk beds. However, Pierre-Victor Tournier, statistician and former expert at the Council of Europe, calculated in 2017 that there was a functional deficit of 14,745 cell spaces, determined by simply deducting the number of inmates at the time (69,430) and the official number of individual spaces (54,685). This is in comparison to the 1,822 prisoners who slept on the floor47. Additionally, a public report published by an MP (Raimbourg, 2015) revealed that on August 1, 2012, 63 % of all cell sizes were between 9 and 11 square metres, bearing in 40 D. Raimbourg, S. Huygue (rapporteurs). Conclusion des travaux d’une mission d’information sur les moyens de lutte contre la surpopulation carcérale. rapp. d’information. National Assembly, 2013, n° 652. 41 M.F. Aebi, M.M. Tiago, C. Burkhardt, SPACE I. Prison populations. Survey 2015. Updated on 25th April 2017. Final Report. Strasburg. Council of Europe. 42 Canali v. France, Appliction n° 40119/09, Judgement 25 April 2013 43 Ministry of Justice, France, Statistiques des personnes écrouées et détenues en France. Situation au 1er juillet. Direction de l'Administration Pénitentiaire. Bureau de la donnée – section analyse et études (SDEX – Ex3), 2019. 44 Ministry of Justice, France, Statistiques des personnes écrouées et détenues en France. Situation au 1er juillet. Direction de l'Administration Pénitentiaire. Bureau de la donnée – section analyse et études (SDEX – Ex3), 2016. 45 Ministry of Justice, France, Statistiques des personnes écrouées et détenues en France. Situation au 1er janvier. Direction de l'Administration Pénitentiaire. Bureau de la prospective et des méthodes, 2007. 46 Ouest France, May 14, 2019. Available at : https://www.ouest-france.fr/societe/prison/surpo pulation-carcerale-nouveau-record-en-france-avec-71-828-detenus-au-1er-avril-6349829; accessed October 6, 2019. 47 P.V. Tournier, Observatoire de la privation de liberté et des sanctions et mesures appliquées dans la communauté, April 3. 2017 (mailing list – available with the author). Martine Herzog-Evans · France and European Prison Law 107 EuCLR Vol. 10, 1/2020 mind that the majority of them are shared. The report added that, at the time, only 40 % of the prison population benefitted from an individual cell, the majority of which concerned women, children and long-term prisoners. The consequences of such dilapidated prison conditions have been studied empirically: they have a notably detrimental effect on the physical48 and mental health49 of both prisoners and staff50 and they are detrimental to rehabilitation. In particular, prison overcrowding has been correlated to significantly worse outcomes51 upon release with more parole violation, reoffending and drug use52. It has also been correlated to prison violence53. In spite of France’s partially dishonest presentation of its true situation, one cannot claim that this jurisdiction has done nothing to try and curb overcrowding statistics. Quite the opposite, a former research in the context of a European Grant (Reducing Prison Population: Advanced tools of justice in Europe, coordinated by the Comunita’ Papa Giovanni XXIII, Rimini), regarding France revealed that this jurisdiction had tried every single avenue and was in fact still trying rather hard at the time54. France had tried: pre-trial; out of trial or other alternatives or a form of plea-bargaining, and increasingly used them en masse; to discourage sentencing courts to use custodial sentences; and to facilitate and strongly encourage very early prison release (in many cases, immediately upon incarceration; in other cases, at roughly a third point, thanks to the combination of remission and release measures). France even created in 1993 a procedure (the so called ‘723–15 procedure’) whereby a prison sentence of up to one year (two years before the Macron Act of 2019) can be transformed by the re-entry judge (juge de l’application des peines – JAP) into a CSM before it is even implemented. Yet, this purely legal approach has failed for a number of reasons described in detail in a report55. First, France has an innate tendency to think it can solve sociological and criminological issues by simply resorting to top-down legal reforms without much consideration for implementation, for negative or counter-productive consequences or 48 M. MacDonald, Overcrowding and its impact on prison conditions and health? International Journal of Prisoner Health, 2018, p. 65-et seq; 49 J. Garcia-Guerrero, A. Marco. Overcrowding in prisons and its impact on health. Revista Española de Sanidad Penitenciaria, 2012, p. 106 et seq. 50 D. Bierie, The impact of prison conditions on staff well-being. International Journal of Offender Therapy and Comparative Criminology, 2012, p. 81 et seq. 51 D.P. Farrington, C. P. Nuttall. Prison size, overcrowding, prison violence and recidivism. Journal of Criminal Justice. 1980, p. 221 et seq. 52 M.A. Ruderman, D.F. Wilson, S.Reid, Does Prison Crowding Predict Higher Rates of Substance Use Related Parole Violations? A Recurrent Events Multi-Level Survival Analysis. PloS one, 2015, e0141328. 53 Farrington, Nuttall, Fn 51. 54 M. Herzog-Evans and D. Boesel, Alternatives to incarceration in France. Reducing prison population in Europe. Coordinated by the Comunita’ Papa Giovanni XXIII, Rimini, 2014 (Grant: JUST/2013/JPEN/AG/4489) – available at: http://www.synergia-net.it/en/european -projects/reducing-prison-population-advanced-tools-of-justice-in-europe-pre118-pe54.htm l. 55 M. Herzog-Evans, La mise en oeuvre de la libération sous contrainte dans le Nord-Est de la France. Paris: Rapport pour la Mission Droit et Justice, 2017. 108 Martine Herzog-Evans · France and European Prison Law VARIA for practitioners’ and prisoners’ agency. Second, pre-sentence reports, which are so essential in order to convince judges not to pronounce custodial sentences, have virtually disappeared because of a lack of funding. Third, and precisely, these measures tend to focus on processes and efficiency in their purely accounting sense and do not put in place the substantial means to actually make a difference in the field. Fourth, none of the out-of-trial or ‘fast’ release procedures even attempt to solve offenders’ criminogenic, psychological or social needs. Inevitably then, they are seen again at the prison revolving door. In essence, the issue is that of a rampant McDonaldisation of the criminal justice system56, as conceptualized by Ritzer57, where individuals are processed into a criminal justice factory line where problems are not solved and policies are thus inevitably doomed to fail. As an illustration, a so-called ‘simplified’—a typical Mc- Donaldisation ‘efficiency’ gimmick—early prison release procedure was created in 2014 (Taubira Act, August 15, 2014) and deprived early release of virtually every single component which would make it efficient: respect for prisoners’ agency; procedural legitimacy; and even release plan and through the gate community support, internal circulars going so far as to prohibit probation services to perform any of these activities58. In view of the predictable failure of such a scheme, the Macron Act of 2019 and its related circular59, rather than removing this procedure from the legal system, has reinforced its mandatory nature by placing even more control with judges, probation staff and prisoners—control being yet another component of Ritzer’s model—and eliminated prisoners’ participation in the procedure. To conclude, France is not, in the case of overcrowding, refusing to comply. Quite the opposite, but the way it proceeds is both ineffective and counter-productive. Conclusion: systemic obstacles to compliance In this study, with a team of Master students, the author collected the EHRCt rulings and CPT recommendations pertaining to France, starting in October 2000 (when the UK Human Rights Act entered into force) and ending in December 2017, regarding prison issues. The author then analysed the responses France gave initially and officially to the CPT’s recommendations as published on its website, as well as its ultimate response and actions to the CPT and to the EHRCt rulings. In other words, in some instances, France has had no less than 17 years to comply. Initially, in the analysis of its official responses to the CTP, France seems ready to follow up in 41 % of the cases. However, the seeds of non-compliance are already 56 see, e. g., M. Hamilton, McSentencing: mass federal sentencing and the law of unintended consequences. Cardozo Law Review, 2017, p. 2199 et seq; G. Robinson, Delivering Mcjustice? The probation factory at the Magistrate’s court, Criminology & Criminal Justice, 2018, p. 605 et seq. 57 G. Ritzer, The McDonaldization of society. London, 2015, 8th ed. 58 Prison Services Directorate, Framework Circular, Dec. 26, 2014; Ministry of Justice, Circular of Dec. 26, 2014. 59 Ministry of Justice Circular, 27 May 2019 Martine Herzog-Evans · France and European Prison Law 109 EuCLR Vol. 10, 1/2020 present and are later confirmed: the ultimate compliance of France is extremely limited, whether it relates to the EHRCt rulings or to the CPT recommendations, totalling only 24 % of the cases. This means that France has not complied in 76 % of the cases. Other studies are needed to analyse whether France’s general refusal to comply is particularly salient in prison cases, or whether it is a general attitude. Moreover, apparent non-compliance may mask the fact that, in some cases, France has tried to improve a situation but has failed to succeed. Therefore, such instances have been classified as partial implementation. France seems to be willing to comply in some cases, such as that of prison overcrowding but how it goes about it is purely managerial and legal and is de facto counter-productive as reported in a previous publication60: The prisonisation of probation services… their considerable caseload, the extreme poverty of the Criminal Justice System (CJS), the managerial processing of cases within tribunals… and probation… along with the punitive penal policies of the Sarkozy era both in general criminal law… and in sentences’ implementation… all have converged to create an environment where prisoners’ reinsertion is no longer supported, but something they have to do on their own. The phenomenon of managerialism, otherwise known as McDonaldisation,61 is of particular concern. Its focus on processes, and speed, leads to many irrational consequences, well documented in research62. So long as jurisdictions such as France resort to McDonalidised techniques to solve issues such as overcrowding, rather than on deeper level, qualitative solutions (e. g. evidence-based offender treatment63; ‘moral prison’ environments64; evidence-based sentencing65; and optimum re-entry66) no effective solution shall be found. Other institutional obstacles are also responsible for this lack of results and, inter alia, a lack of information sharing and ‘all hands-on deck’, or programmatic approaches to crime, prison and re-entry issues67, which in turn can be explicated by institutional factors such as, inter alia, the judiciary’s lack of understanding of criminogenic needs 60 M. Herzog-Evans, Managerialism, ‘get off your butts’ and de facto not-for-profit privatization in prisoner resettlement in France. In F. Dünkel, I. Pruin, A. Storgaard/J. Weber (Eds.), Prisoner resettlement in Europe, pp. 128 et seq., spe. pp. 130–131 61 Ritzer, Fn 57; Robinson, Fn 56. 62 Ibid. 63 J. Bonta, D.A. Andrews, The psychology of criminal conduct, Sage, 2017, 6th ed. 64 A. Liebling. Prisons and their moral performances. 2004. 65 See e. g. R.R. Redding, Evidence-Based Sentencing: The Science Of Sentencing Policy and Practice, Chapman Journal of Criminal Justice, 2009, p. 1 et seq. and J.K. Elek, R.K. Warren, P.M. Casey. Using risk and needs assessment information at sentencing. Observations from ten jurisdictions. National Center for State Courts. Center for Sentencing Initiatives, 2015. 66 M. Berghuis. Reentry programs for adult male offender recidivism and reintegration: A systematic review and meta-analysis. International Journal of Offender Therapy and Comparative Criminology, 2018, 4655 et seq. 67 A. Giudicelli, La prévention de la récidive dans sa dimension multipartenariale. 2017. 110 Martine Herzog-Evans · France and European Prison Law VARIA and mental health issues68 and the fact that probation services belong to the prison services69. In conclusion, one thing is apparent: regarding prison issues, France cannot be perceived as belonging to the ‘good student’ category. At a deeper level, Anagnostou and Skleparis in their aforementioned study considered that it would be ‘unrealistic’ to expect that European judicial decisions may have a systemic impact which would lead to fundamental changes in member states’ legal systems. I do not share this view. European court rulings are part of the European legal order and, as such, they are part of the French legal order. As of the CPT’s body of reports, it is regularly cited by the ECHRct. European recommendations are also written in view of both the ECHRct and the CPT’s ensemble of rulings and recommendations and they are abundantly cited in the recommendations’ commentaries. These norms, rulings and recommendations form a tangled ensemble which no member state can, as a general principle, violate without being considered in systemic breach. Finally, it must be stressed that Europe itself shares the responsibility for the situation reported on in this article. In encouraging European states to focus on judicial speed and in analysing swift justice as being a proxy for efficiency70, thereby marginalising efficacy, Europe itself has contributed to the managerial and ‘McDonald’ processing of the criminal justice system and thus, inevitably, to more incarceration and less rehabilitation and ‘breadth’71 68 Herzog-Evans, Fn. 55. 69 M. Herzog-Evans. France: Legal architecture, political posturing, ‘prisonbation’ and adieu social work. In Robinson G. & McNeill F. (eds.), Community Punishment. European perspective, 2015, p. 51-et seq. 70 L. Cadiet, J.P. Jean, H. Pauliat (eds.), Mieux administrer pour mieux juger. Essai sur l’essor et les enjeux contemporains de l’administration de la justice, 2014. 71 In criminological treatment terms: Bonta, Andrews, Fn 63. Martine Herzog-Evans · France and European Prison Law 111 EuCLR Vol. 10, 1/2020

Abstract

Prima facie, the implementation of European prison law rules and European Court rulings seems to be facilitated by the French legal structure since it views international and European law as having primacy over national norms. However, in a written law jurisdiction such as France, jurisprudence does not benefit from a very high status and soft low is generally dismissed since it is not binding. Previous legal research has addressed European jurisdictions’ compliance with European human rights law, notably as regards prison matters. However, it has used classic legal reasoning. Few studies have put this issue to the empirical test. Two notable exceptions are Tom Daems regarding Belgium, and Koskenniemi and Lappi-Seppälä’s regarding Scandinavian jurisdictions. This article presents the results of a study pertaining to France’s compliance with the rulings of the European Human Rights Court and the recommendations of the European Committee for the Prevention of Torture regarding prison issues, this by using a combination of Daems and Koskenniemi-Lappi-Seppälä classifications. It finds that, as a general rule, France is non-compliant with prisoners’ European human rights. Additionally, although it has made significant efforts to respond to the overcrowding crisis, France has failed, notably because it has not addressed overcrowding systemic and criminological causes.

References

Abstract

The European Criminal Law Review (EuCLR) is a journal dedicated to the development of European Criminal Law and the cooperation in criminal matters within the European Union. In these areas the Lisbon Treaty has supposedly brought about the most important changes and also the greatest challenges for the future.

It is the journal’s ambition to provide a primary forum for comprehensive discussion and critical analysis of all questions arising in relation to European Criminal Law. It will include articles and relevant material on topics such as

- the harmonisation of national criminal law in consideration of European legal instruments,

- the implementation of the principle of mutual recognition in the area of cooperation in criminal matters and the development towards the creation of a European Public Prosecutor,

- the emergence of a balanced European Criminal Policy based on fundamental rights, freedom and democracy with particular reference to the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights.