Criminal Justice in Europe: A Comparative Study

GILLIAN DOUGLAS AND MARTIN MOERINGS

In this chapter, we compare the protection of prisoners' rights in the Netherlands and England and Wales.¹ We outline the current position in the two jurisdictions, and then consider the extent of European influence upon the recognition of the rights prisoners seek to enjoy. We regard the isolation of prisoners from the outside world, and their consequent powerlessness, as the key features of imprisonment, and therefore focus on whether, and if so how, prisoners may seek to uphold their rights to social contacts, and to challenge internal disciplinary findings against them.

Not only are the two systems significantly different in their attitude towards, and the consequent treatment of, prisoners, but they also differ radically in the extent to which they look, or are forced to look, to European and international influences in deciding whether to grant enforceable rights to prisoners. The case law of the two countries plays a part in this difference. While the European Convention on Human Rights is incorporated into Dutch law, and must therefore be taken into account by domestic courts and authorities when considering whether rights have been infringed, this is not the position in the United Kingdom. There, courts may try to rule on the law so as to be compatible with the Convention, but cannot change the law to achieve this. Public authorities may, but are quite likely not to, consider the possible ramifications of a breach of the Convention when reaching decisions or drafting policies affecting human rights.

We start by describing the prison system in the two jurisdictions to clarify the problems which exist and how far the rights of prisoners can be used to address these.

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