Across 2024 and 2025, EPLN and its partners conducted a study analysing sentence adjustment mechanisms in seven European countries (Belgium, France, Germany, Poland, Portugal, Spain and Ukraine). The starting point of this study was the paradoxical observation of the coexistence of a well-established reductionist rationale under the Council of Europe’s (CoE) penology, which advocates for sentence adjustment as an efficient means of fostering prisoners’ reintegration into society, and, on the other hand, of a lack of decisive intervention from the European Court of Human Rights (ECtHR) in this area. [1]
Indeed, in addition to promoting the principle of imprisonment as a last resort, the CoE has, since its early involvement in the field of sentence execution, consistently supported the development of temporary leave and conditional release schemes. Both prison leave and conditional release are promoted for their positive impact on the reintegration of prisoners (Recommendation No. R (82) 16 on Prison Leave, European Prison Rules, Recommendation Rec(2003)22 on conditional release (parole)), and the use of the latter is explicitly recommended in relation to long-term prisoners (European Prison Rules, Rules 107.2-107.3; Resolution (76) 2 on the treatment of long-term prisoners). Beyond the promotion of sentence adjustment measures, the CoE has also sought to articulate procedural safeguards applicable to related proceedings. In particular, guidance has been provided to ensure that the legal framework governing sentence adjustments meets adequate standards of quality (by clearly defining the measures available, as well as the nature and powers of deciding and implementing authorities), and, albeit with varying degrees of precision, to guarantee prisoners’ access to a remedy against decisions concerning sentence adjustment (Recommendation CM/Rec(2017)3 on the European Rules on community sanctions and measures, Recommendation Rec(2003)22 on conditional release (parole), Recommendation CM/Rec(2014)4 on electronic monitoring).
However, the ECtHR has been reluctant to incorporate into its case-law the guidance contained in the above-mentioned soft-law instruments, so as to elevate it to the level of binding obligations incumbent upon States. Although it has recently articulated an obligation to support the reintegration of offenders into society, [2] this development has not genuinely translated into enforceable rights for convicted persons in the field of sentence enforcement — particularly as regards sentence adjustment — except, in the case of life prisoners. Indeed, almost ten years after the landmark judgment of Murray v. the Netherlands [GC], (no. 10511/10, 26 April 2016) – in which the Court systematised the obligations incumbent upon States to provide for a review of the continued necessity of detention for life-sentenced prisoners, accompanied by robust procedural safeguards, and despite the hope expressed by Judge Pinto de Alburquerque in his concurring opinion in that judgment [3] – the Court has refrained from extending these safeguards to prisoners beyond life-sentenced individuals.
By applying the doctrine of “incorporated control”, according to which the legality of a detention is assessed within the judgment imposing the deprivation of liberty, the application of Article 5 § 4 was limited to cases where the causal link between the original judgment and the detention has been broken: in the context of sentence adjustment, this principle applies specifically to the revocation of parole (Etute v. Luxembourg, no. 18233/16, 30 January 2018). [4] Similarly, the Court has consistently refrained from recognising the applicability of fair trial guarantees stemming from Article 6 § 1 to sentence adjustment proceedings, arguing that “issues relating to the manner of execution of a custodial sentence […] concern neither the determination of ‘a criminal charge’ nor the determination of ‘civil rights and obligations’ within the meaning of this provision”. [5] This is clearly exemplified in Boulois v. Luxembourg [GC] (no. 37575/04, 3 April 2012), where the Court denied a prisoner the right to access a court and to benefit from a fair procedure to challenge decisions refusing his requests for prison leave by the Prison Board, on the ground that the procedure in question did not concern a “right” within the meaning of this provision – thereby accepting the Government’s argument that sentence adjustment measures are merely a “privilege” that “may be granted”.
At the same time, the past decades have witnessed the spread across Europe of a judicialised model of sentence adjustment proceedings, characterised by the transfer of decision-making powers from executive authorities to courts – either directly or by way of appeal. This development has undoubtedly been shaped by a complex set of factors, including the guidance provided by the soft law instruments mentioned above, and, more broadly, the decreasing acceptability of decisions taken by the executive in matters affecting individual liberty.
Within this context, the study aimed to assess the degree of harmonisation of national sentence adjustment systems in the absence of a binding European framework in this field, and to evaluate the impact of their observed judicialisation on prisoners’ effective access to sentence adjustment measures. In addition to providing an analysis of the domestic frameworks, the study also sought, through fieldwork, to examine how sentence adjustment mechanisms operate in practice, with specific attention afforded to how the increased importance of risk-based considerations influences the system overall.
Indeed, for decades, scholars have identified a shift in European penal policies, characterised by a growing emphasis on risk management and actuarial governance, which, in the area of sentence adjustments, has translated into risk considerations gaining preponderant weight in sentence adjustment proceedings, and becoming in several jurisdictions a decisive criterion for determining access to such measures. [6] The novelty currently observed is that, whereas risk assessment has traditionally relied on clinical evaluation and unstructured professional judgement by prison professionals (often accompanied by an assessment of dangerousness by psychiatrists), the past decade has witnessed the expansion of formalised and increasingly data-driven instruments across European States. Consequently, decisions affecting prisoners’ access to liberty depend not only on judicial determinations or professional discretion, but also increasingly on how such large datasets are collected and shared between agencies, and, in many systems, on the technology used to analyse such data. Indeed, the development of risk-assessment instruments has, in particular, accelerated the deployment of algorithmic-based technologies, which pose new risks to fundamental rights in detention and challenge European human rights instruments, which appear still ill-equipped in the criminal justice field, owing to regulatory gaps and lacunae.
The present report consists of ten chapters. After re-situating, defining the scope and research questions of the two-year study (Introduction), the report seeks to further develop the analysis of European doctrine on sentence adjustment, addressing both the contributions and limitations of the CoE and European Union (EU)’s legal framework (Chapter 1 and Chapter 2). The report then turns to an analysis of CoE and EU standards on data protection, automated decision-making and AI in the context of sentence adjustment and through the lens of the protection of prisoners’ rights (Chapter 3). The report finally examines domestic frameworks and their functioning in practice across the seven countries selected for the study – considering structural barriers and facilitating factors to access sentence adjustment, as well as, where applicable, the specific challenges posed by the development of risk assessment tools (Chapters 4 to 10).
IN PARTNERSHIP WITH
[1] The scope of the study included both sentence adjustment mechanisms (procedures of early release, i.e. leading to the release of the convicts from prison for serving a sentence outside prison (home detention, conditional release, electronic monitoring, suspension of sentence, etc.), even in cases where the persons concerned retain legal prisoner status) and sentence sentence reduction mechanisms, provided that these measures involve an assessment of the merits of their behaviour (automatic measures are not taken into account).
[2] Khoroshenko v. Russia [GC], no. 41418/04, 30 June 2015, § 121: “[…] the emphasis on rehabilitation and reintegration has become a mandatory factor that the member States need to take into account in designing their penal policies”.
[3] See § 13: “The logical conclusion to be drawn from the above set of Convention principles is that, if a parole mechanism must be available to those convicted of the most heinous crimes, a fortiori it must be available to other prisoners. It would fly in the face of justice if offenders convicted of less serious offences could not be paroled whenever they are apt to reintegrate society, while such an opportunity would be afforded to offenders convicted of more serious crimes. Thus, in principle, the Convention guarantees a right to parole to all prisoners”.
[4] However, this position may potentially be called into question in light of the approach recently adopted by the ECtHR’s Second Section, which drew a distinction “between sentences – such as determinate sentences – where the end date of the sentence is fixed with reference to the gravity of the offence and sentences – such as certain indeterminate sentences – where the end date is not fixed and where the grounds relied on by the sentencing judge are by their nature susceptible of change with the passage of time”, thereby limiting the application of Article 5 § 4 only to recalls to prisons in the latter type of sentences (Yalahow v. the United Kingdom (dec.), no. 42341/21, 2 September 2025, § 53).
[5] Ballıktaş Bingöllü v. Türkiye, no. 76730/12, 22 June 2021, § 48.
[6] Sonja Snacken, An Bauwens, Dirk van Zyl Smit, Hanne Tournel and Ria Machiels, ‘Prisons and Punishment in Europe’ in Sophie Body-Gendrot, Mike Hough, Katalin Kerezsi, René Lévy and Sonja Snacken (eds), The Routledge Handbook of European Criminology (Routledge 2013) 422.
Funded by the European Union. Views and opinions expressed are however those of the authors only and do not necessarily reflect those of the European Union or the European Commission. Neither the European Union nor the European Commission can be held responsible for them.”