Taking prison struggles before the courts is a recent phenomenon on the old continent, let alone at the European level. Thus, until recently, the ECtHR bodies have not had to take into account coordinated litigious campaigns intended to force legal developments in favour of prisoners’ rights.
In this respect, it must be noted that the USA, where the cause of detainees was brought before the courts on a large scale as early as the 1960 ’s, has not served as a model for advocacy organizations working in the prison field in Europe. The difference in the structuring of struggles on both continents is striking. Professor Olivier de Schutter explains that “between 1965 and 1990, in almost all the states of the USA, the courts adopted orders prescribing massive transformations within the prison system. In the name of constitutional protection against treatments described in the eighth amendment as “cruel and inusual.” The author also recalls that “between 1966 and 1976, the actions for damages for detainees for breach of their constitutional rights were multiplied by thirty”. Much of this massive appeal to the judge to try to force prison transformations can be explained by the previous experience of the civil rights movement, which made good use of law as a weapon to bring down segregation in the country. Indeed, the case of detainees was partly brought by lawyers who had already played a role in the legal struggles against racial discrimination in the 1950s-1960s, particularly in the educational system. Moreover, as James B. Jacobs has shown, “by the late 1950s, and early 1960s, blacks constituted a majority of the prisers in many northern Prisons and in some states. Their consciousness aroused by the civil rights movement, it was only natural that this generation minority prisoners would demand its rights even behind bars; it was not about to accept being invisible. By the late 1960s some black prisoners (…) had achieved extraordinary prominence. Their ties to outside groups, and to batteries of lawyers, could not be severed. And they may well have politicized their lawyers as much as their lawyers politicized them. Riots and law reform were paths to political change in the larger society during this period and the same phenomena became increasingly evident in the prisons.”.
The trajectory followed by European prison law until the early 2000s contrasts singularly with the American experience. Dirk Van Zyl Smit and Sonja Snacken showed how the developments in European prison standards had been made by intergovernmental structures within the Council of Europe and by experts mandated by them, through soft law and then the creation of the European Committee for the Prevention of Torture. The contribution of case law to the building of protection of the rights of detainees has remained for a long time very limited (see the speech by Judge Françoise Tulkens and the article by Béatrice Paster-Belda). To the extent that, in September 2000, Italy’s government, which then chaired the Committee of Ministers, took the initiative to initiate a process aimed at adopting a Protocol to the ECHR securing certain additional rights to persons deprived of their liberty. Indeed, the jurisdictional horizon appeared to be so blocked in terms of prison matters that the idea of adding to the text of the Convention had been advanced by the President of the Court himself, Rolv Ryssdal, in June 1990 and again in October 1998. This idea was ultimately rejected in November 2001, given the frank and rapid legal developments with regard to prisons that had taken place in the preceding months.
Purely legal considerations, linked to the text of the Convention, undoubtedly explain the original timidity of European protection for detainees. The low internationalisation of militant movements on prisons is also one of the possible reasons for the weakness of this court action in Strasbourg. But it is likely that the lack of activism on the part of the bodies of the Convention on this issue partly reflects the reluctance of those involved in the cause of prisoners in Europe to conceive of the law as a weapon of emancipation. As Gabriel Mouesca testified with regard to France, “in the early 90s when I spoke to co-detainees about the force of law, they laughed in my face because they said “but the law is written by them and for them, and it’s in the name of the law that they break our lives, break us down, dissocialise us.”
The same circumspection about the law, which was perceived as unfit to provoke real changes in prisons, or even as preventing it from grasping its inherent characteristics, has frequently been raised by associations. From this perspective, the case of legal action in the United Kingdom, which has led to significant results, is an exception in Europe. The article below from Hugues de Suremain recalls that the biggest prison activist organisation in France has long seen it as largely unfit to carry out real transformations in prisons. When the field of court action was gradually applied, this tactic was conceived as ancillary to other forms of effort. Even in Germany, where the role of judicial control holds a central place in the legal culture and where the courts played a decisive role in the formation of prison law in the 1970s, legal actions seem to have rather rapidly come to a standstill and, in any event, have not had any real direct outcomes in Strasbourg (see soon the insight into Germany). The expectations of European law have undoubtedly been much higher from the outset amongst activists in Central and Eastern Europe (see soon the insights into Poland, Ukraine, and Russia). However, the penitentiary litigation in these countries has, for the most part, only had an impact on the Court’s case-load at the very end of the 1990s/ in the early 2000s.
Where did this scepticism about law come from? The position of the associations is the result of the history of prisons and the reading of it made by the philosopher Michel Foucault, who strongly influenced the academic and activist circles of the prison field. Indeed, for Foucault, the “Prison ‘reform’ is virtually contemporary with the prison itself: It constitutes, as it were, its programme From the outset, the prison was caught up in a series of accompanying mechanisms, whose purpose was apparently to correct it, but which seem to form part of its very functioning, so closely have they been bound up with its existence throughout its long history. […] The prison should not be seen as an inert institution, shaken at intervals by reform movements. The ‘theory of the prison’ was its constant set of operational instructions rather than its incidental criticism – one of its conditions of functioning.” This analysis, set out in 1975, continues, despite the development of a “criticism of the criticism” in different academic currents, to apply now in the social-science work devoted to prison policies, highlighting the “permanent rhetoric of reform” that is part of the process of legitimising and reproducing the prison institution.
Although it is still applied in the academic field, this view has largely lost its influence in the public debate, as the—fully legitimate—issue of detention conditions and humanitarian concerns seem to be the focus of the entire criticism of the prison system. But does it retain its relevance in addressing the contemporary issues of recognising rights for detainees? Twenty years of diverse experience of incorporating ECHR requirements into domestic legal systems may allow to argue so and show that, as the Strasbourg Court argues, “especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident”.
The contributions published here tend to show that, rather than disqualifying legal struggles or reference to the law in itself, this critical approach calls for caution in terms of the expectations to be placed in their medium and long-term impact. In a way, this approach equips legal action, by allowing it to identify the pitfalls of the purely formal recognition of rights and the challenges of implementing rights in a prison. In this perspective, in his article below, the historian Jean Berard points to the tendency of prison reforms to bring back “the utopian notion of reform” which “gives new power to the systems of differentiation/penalties that legitimise arbitrary treatments for people.” In the context of a growing demand for management and security tools linked to the increase in the prison population and the extension of the length of sentences, the historian warns us that the most difficult struggles will be “those that aim to distinguish the perpetuation of arbitrary treatment behind the finery of a new scientific approach, which has moved from a medical examination to the use of statistical data.” In the same vein, in the interview below, the criminologist Dan Kaminski warns against the possible neutralisation of rights, through a utilitarian vision of those rights, which would serve a rehabilitative objective and a managerial approach, that would consist of making the detainee responsible for creating the conditions for their own reintegration inside the prison itself. For the criminologist, “freedom must remain the mooring point for the whole policy of the structuring of the deprivation of liberty,” and it is this approach that must guide efforts to transform prisons.
Related articles and videos :
Interview with Dan Kaminski, Professor of criminology at the University of Louvain-la-Neuve, Belgium.
Article from Jean Bérard, Lecturer in history at the ENS Paris-Saclay, and researcher at the Institute of Political Social Sciences (ISP)
The judicial turn taken by the militant movement on prisons in France: a look back at the first legal battles
Article from Hugues de Suremain, Legal coordinator of the European Prison Litigation Network, former head of legal affairs at Observatoire International des Prisons — French Section
 Olivier de Schutter, Le rôle du juge dans la révolution pénitentiaire aux Etats-Unis, in Olivier de Schutter & Dan Kaminski, L’institution du droit pénitentiaire, Enjeux de la reconnaissance de droits aux détrenus, Brylant/LGDJ, 2002
 James B. Jacobs, The Prisoners’ Rights Movement and Its Impacts, 1960-80, Crime and Justice. Vol. 2 (1980), pp. 429-470 (42 pages)
 The scope of the rights envisaged in the draft was indeed limited.
 Unlike other international mechanisms for the protection of human rights (the International Covenant on Civil and Political Rights (1976, art. 10, § 1) and the American Convention on Human Rights (1969, art. 5, § 2), the ECHR does not include specific provisions concerning the position of people deprived of their liberty. Livingston also argued that “a general human rights treaty such as the ECHR is essentially predicated on a paradigm of liberty (…) Whatever the reality of this norm for most citizens of Convention States, it clearly does not fit the reality of most prisoners lives.” Therefore, the absence of a guarantee of economic and social rights in the Treaty was detrimental for detainees. Finally, he pointed out “the breadth of the restrictions available under the Convention”, which left the bodies in Strasbourg large discretion (see Stephen Livingstone, Prisoners’ rights in the context of the European Convention of Human Rights, Punishment and Society, vol. (2) 3: 309-324
 See Stephen Livingstone, Op. cit.
 It should be noted that international organisations, and above all Amnesty International, have actively engaged in provoking the adoption of the aforementioned protocol. But this advocacy does not seem to have been accompanied by strategic litigation.
 Philippe Artières, Pierre Lascoumes, Grégory Salle, “Gouverner, enfermer. La prison, un modèle indépassable”, in Ph. Artières & P. Lascoumes (dir.), Gouverner, Enfermer Gouverner, Enfermer. La prison, un modèle indépassable ?, Paris, Presses de Sciences Po, 2004, p. 47.