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Uladzislau Belavusau, Dimitry Kochenov
This article critiques the controversial approach taken by the Court of Justice towards the periods of imprisonment in the 2014 judgments of Onuekwere and MG. The Court approved the exclusion of such periods for the purposes of (1) acquiring permanent residence and (2) benefiting from the enhanced protection against deportation. Effectively, the Court has revitalised the archaic doctrine of civil death in the EU. This development is not only in profound contradiction to the essential features of European constitutionalism and contemporary approaches to the rights of inmates in European democracies. It is also markedly ineffective in combating crime, de facto favouring ritual banishments over measures to reduce reoffending. The authors uncover lacunae in the Court's reasoning incompatible with the emancipating paradigm of EU citizenship - non-discrimination - as well as any desirable humane outlook on penitentiary systems and the aims of criminal justice. They unpack these judgments in light of the history of punishment, citizenship theory and the emerging European prisoners' rights standards, including the latest developments before the European Court of Human Rights, paying particular attention to the recent UK developments in this area. They conclude that bar some extraordinary exceptions, imprisonment periods should undoubtedly count as proper residence by EU citizens in the Member States other than their own. The nationalist reasons behind the recent shift in case law hardly qualify as sound considerations to limit the reach of EU law, instead undermining the legislator through a contra legem ultra vires reading of the relevant Directive. They do not make European cities safer, they do not improve the lives of EU citizens and they undermine the achievement of the goals of EU integration.
"La souffrance physique, la douleur du corps lui-même ne sont plus les éléments constituants de la peine. Le châtiment est passé d'un art des sensations insupportables à une économie des droits suspendus" (Michel Foucault)
