Foreign prisoners in Europe: an analysis of the 2012 Council of Europe Recommendation and its implications for international penal policy

The issue of migration is attracting significant media and political attention in Europe. Migration has been one of the causes of the rapid rise in the number and proportion of foreigners in national prisons. In response to this problem, the Council of Europe’s Committee of Ministers in 2012 adopted a recommendation concerning the treatment of foreign prisoners. This article analyses the penological and human rights implications of this recommendation in relation to its objectives to reduce the number of foreigners in custody, improve the regime experienced by foreign offenders and enhance the prospects for their successful reintegration. While the 2012 Recommendation makes important contributions to regional penal policy, it also contains notable gaps and limitations. The paper discusses the significance of omissions in relation to the (potential) role of consular representatives, dealing with nationals detained abroad and the use of inter-state transfers. Despite these criticisms and political resistance to some proposals in this field, there appears to be wide spread support for the Recommendation at a practitioner level. It may also have significance beyond domestic policy. There is a new and growing sub-category of foreign prisoner in Europe: the international prisoners convicted by international criminal courts that are serving their sentences in the prison systems of cooperating States. The paper concludes with a discussion of the potential influence regional penal policy can have on the implementation of international custodial sanctions