Changes in European instruments as a reflection of a shift in legal philosophies relating to community sanctions and measures

Abstract

The number of persons under community sanctions and measures in the criminal justice system have grown rapidly in many European countries. In response to this phenomenon, the Council of Europe has issued several recommendations on community sanctions and measures in recent decades. The European Union has also published two framework decisions concerning community sanctions and measures that are legally binding on its member states. This article examines the shifts of the general legal philosophies of European instruments on community sanctions and measures, through a review of the subtle changes in the rhetoric of these. Results show that community sanctions and measures are increasingly promoted because of their inherent value, rather than simply because they provide the means to reduce the use of imprisonment. The European instruments assert interdependence between the two objectives of offender rehabilitation and public protection, consider the indicators related to both as the criteria for effective supervision, and understand community sanctions and measures as being not only efficiency oriented but also based on Europe’s human rights framework. However, a particular concern — risk management of dangerous offenders — leads to looser interpretations of some principles of human rights. To retain the European image of resisting punitiveness, this problem can be addressed by firmer and stricter interpretation of these principles.