Abstract

In this chapter we analyze from a normative point of view what consequences European human rights standards should have for the construction of breach processes. Art. 5 of the European Convention on Human Rights protects the right to liberty from arbitrary interference by the state; Art. 6 enshrines the right to be treated fairly throughout the criminal procedure. These two guarantees therefore are the common legal pillars of procedural justice in all 47 Member States of the Council of Europe and the jurisprudence of the European Court of Human Rights has helped enormously to develop a better understanding and practice in many of these states. Both rights, however, are only applicable to a very limited extent to persons who breach the terms of their supervisory sentences and who are confronted with a breach procedure, although their rights and liberties are at stake (again). This chapter explores how relevant concepts of the European Convention on Human Rights (ECHR) can and must be translated to these processes of breach: how robust must be the reasoning of negative consequences after breach, which standard of proof can we require? How far does the right to be heard go—does it require a personal encounter between decision-maker and the person involved? Does this include the right to legal representation (and does legal aid apply)? To answer these questions, additional Recommendations made by the Council of Europe, namely the European Rules on Community Sanctions and Measures and the European Probation Rules will be of use.