The French NPM drafted a thematic report in 2012 in which it highlighted the serious problems
associated with overcrowding.270 It advised on how to address this issue, which included giving recommendations to judges. Generally, the NPM makes recommendations on the use of alternatives
to detention and specifically mentioned a new law introduced in France in 2014271 providing that
judges should take into account detention conditions when issuing a judgment, with respect to an
individual detained in a semi-open prison, with a view to granting day release, or release with electronic monitoring. This forms part of the sentence review procedure.
Many other NPMs have addressed the issue of overcrowding referring to CoE standards as well
as national law. The Cypriot NPM for example recently raised the issue by suggesting that greater
emphasis be placed on programmes that foster work beyond the prison walls, although such dialogue is limited to the Parliament.
The Austrian, Croatian, Czech, Luxembourgish, Polish and Romanian NPMs mentioned that they give
recommendations on using alternatives to detention, for example on the increased use of electronic
tagging and community based work for offences with prison sentences of less than two years (Luxembourg) on the reduction of prison sentences through imposing fines or community service orders
(Romania) or to alter criminal policies (Poland).
Only two NPMs within the EU seem to have based recommendations on alternatives to detention
pursuant to EU law so far, namely the Greek and Romanian NPM. The Greek NPM made recommendations on the use of the European Supervision Order. It highlighted in a report of the NPM that
the “final goal” was “less prisoners, less time of incarceration, particular attention to special cases,
implementation of alternative detention measures.”272
As overcrowding constitutes one of the risk factors of poor conditions of detention possibly leading
to a violation of Article 3 ECHR, the authors of this Study believe that raising the issue with authorities is very much in connection with their mandate to prevent ill-treatment. Recipients of such
recommendations can be the judiciary, but will also normally encompass other state authorities,
such as the Ministry of Justice. The FD ESO and the FD PAS should be considered by NPMs in cases
of detainees from other EU Member States. As most EU Member States do not yet make use of the
instruments, NPM could play a role by bringing their existence to the attention of the responsible
authorities.
270
Interview with French NPM, 4th October 2016..
271
See Law on Penalty Adjustment, 15 August 2014.
272
Greek Ombudsman Special Report 2015 page 3. Full report available at
http://www.ohchr.org/Documents/HRBodies/OPCAT/NPM/NPM2015_Greece.pdf.
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