Criminal Justice Research Centre

European Law and Policy on Non-Custodial Punishment: Penology and Human Rights

This research project, led by Professor Dirk Van Zyl Smit and funded by the British Academy, explored non-custodial punishments in European law. 

Non-custodial sanctions, particularly those that are implemented in the community, have different legal and historical roots in common law and civil law jurisdictions. Nevertheless, various pan-European instruments have emerged that seek to shape the imposition and the manner of implementation of such sanctions across the continent. These instruments operate within the frameworks of both the Council of Europe and the European Union.

By studying this history closely, this research reveals that the apparent European consensus on these matters disguises underlying differences between probation and suspended sentences. It also suggests that a focus on more interventionist 'probation' may be leading to less attention being paid to other, less interventionist, non-custodial sanctions.

Other parts of the research reflect on how, in the pan-European context, noncustodial sanctions are legitimated.

Finally, there is a wider comparative element. It focuses on differences between Europe and the US in allowing prisoners to serve the latter part of their sentences in the community. The most recent tendency in this regard is for 'parole' to be used less frequently in the US at the very time where it is becoming more common in most European jurisdictions.

Papers presented

As part of this research project, the following papers were presented by Professor Dirk Van Zyl Smit:

  • 'Principles underlying the European dimension of Community Sanctions and Measures' at the meeting of European Working Group on Community Sanctions, Edinburgh 11 May 2011. (with Sonja Snacken).
  • 'Legitimacy of Imprisonment, Community Sanctions and Fines - A European Perspective' at the 12th Annual Conference of the European Society of Criminology, Vilnius 22 September 2011 (with Sonja Snacken).
  • 'American Exceptionalism in Parole Release and Supervision' (with Alessandro Corda) at Conference of the Robina Insitute on American Exceptionalism in Crime and Punishment: Diagnosis and Solutions at the University of Minneapolis, 25-27 April 2013: A special session of this conference was held on the first day at which participants, including the grant holder, gave presentations of their key findings to members of the legal profession and the wider public.
  • 'The European Probation Rules and The European Prison Rules in the context of the [EU] Framework Decisions' ISTEP (Implementation Support for the Transfer of European Probation Decisions) final conference Vilnius 16 May 2013.
  • 'One cannot legislate kindness': the development of European legal instruments governing non-custodial sanctions' 13th Annual Conference of the European Society of Criminology, Budapest, Hungary, 5 September 2013.


Book chapters

  • Dirk van Zyl Smit 'Non-custodial sanctions and European human rights law' in J Roberts and L Zedner (eds.) Principles and Values in Criminal Law and Criminal Justice: Essays in honour of Andrew Ashworth. Oxford University Press, Oxford (2012) 191-208.
  • Dirk van Zyl Smit and Alessandro Corda 'American Exceptionalism in Parole Release and Supervision' in Kevin Reitz (ed) American Exceptionalism in Crime and Punishment. Oxford University Press, New York. (11,000 words)


  • Dirk van Zyl Smit, Sonja Snacken and David Hayes 'One cannot legislate kindness’: Ambiguities in the development of European legal instruments on noncustodial sanctions'

It is intended that this research project will also form the basis of a book on non-custodial punishments in Europe, written together with Professor Sonja Snacken of the Vrije Universiteit in Brussels.

Related projects

The work on legitimacy of on custodial sanctions informed in a wider overview paper published as 'Legitimacy and the Development of International Standards for Punishment' in J Tankebe and A Liebling (eds) Legitimacy and Criminal Justice: an International Exploration. Oxford: Oxford University Press. (2013) 267- 292.

It was also very helpful for Christine Morgenstern and Dirk van Zyl Smit 'International Human Rights Standards and Community Sanctions' in G.J.N. Bruinsma, D.L. Weisburd (eds.), Encyclopedia of Criminology and Criminal Justice, DOI 10.1007/978-1-4614-5690-2, Springer Science+Business Media New York 2014 (forthcoming).


Criminal Justice Research Centre

School of Law
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University of Nottingham
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Nottingham, NG7 2RD

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