• • Age related vulnerability raises fairness and dignity concerns in criminal justice systems.

• • Emirati law protects older crime victims but offers limited safeguards for elderly defendants.

• • French law provides stronger age sensitive protections in criminal procedures and punishment.

• • Policy reform is needed to integrate aging considerations into criminal justice frameworks.

The French Code of Criminal Procedure does not contain exceptional rules exclusively dedicated to elderly defendants. However, age-related vulnerability is taken into consideration as a factor in assessing compatibility with detention, in accordance with the principles of human dignity. An elderly defendant may request a medical examination while in detention to determine whether their health condition is compatible with confinement (Iftene & Hearns, 2025), which may result in the termination of detention if incompatibility is established (Peraire et al., 2025). Where the defendant is placed under guardianship or care due to age, the guardian must be notified immediately in order to participate in the proceedings and to ensure the protection of the individual’s rights. This approach is consistent with the standards of the European Court of Human Rights (ECHR), pursuant to which the continued detention of a frail elderly person may constitute a violation of Article 3 of the Convention.

In the context of detention, Article 63–3 of the French Code of Criminal Procedure requires a medical examination upon the request of the defendant or their family, or on the initiative of the judicial police officer or the public prosecutor, where age-related vulnerability is suspected. The legislator has laid down specific conditions for this examination under Article 63–3, providing that it must be conducted “out of sight and hearing of outsiders in order to allow dignity and professional secrecy to be respected.” Moreover, all necessary steps must be taken to secure the intervention of a physician within a maximum period of three hours following the request, whose medical certificate issued at the conclusion of the examination constitutes a fundamental document that must be included in the procedural file (Dubois, 2025).

The physician assesses the compatibility of the defendant’s health condition with detention, which may lead to the termination of detention or the transfer of the defendant to a hospital if incompatibility is established, which is essential safeguard for elderly persons who may suffer from chronic illnesses (Tesoro, 2025). The physician must issue a certificate recorded in the detention record, and where the elderly person is under guardianship or care, the guardian must be notified immediately pursuant to Article 706–113, which allows participation in the defense and the request for an additional medical examination.

It should be noted that paragraph (5) of Article 63–3, introduced following the integration of telemedicine into criminal proceedings under Decree No. 303–2020 of 25 March 2021, constitutes an exception to the principle of direct medical examination. Remote medical consultation is permitted only under two conditions: first, exclusively during extensions of detention, provided that the initial examination has been conducted in person; and second, subject to the explicit consent of the detainee, in accordance with Article R15–33-83 of the Criminal Procedure Code.

By contrast, there is no equivalent provision in the UAE Federal Criminal Procedures Law. Although the law does not prohibit such a procedure, it does not establish a right obliging the judicial police officer to implement it. Similarly, there is no requirement to immediately notify a guardian, to allow participation in the defense, or to request an additional medical examination. Accordingly, it is recommended that the UAE Federal Criminal Procedure Law expressly provide for a medical examination in cases of age-related vulnerability, in a manner comparable to the requirements set forth in Article 63–3 of the French Code of Criminal Procedure.

Before the investigating judge, age is taken into consideration through the possibility of requesting medical or psychological examinations under Article 81 of the French Code of Criminal Procedure to assess the defendant’s capacity for criminal responsibility or their compatibility with procedural requirements (Mattison¹ et al., 2025). Where age-related vulnerability is established, the investigating judge may favor alternatives to pre-trial detention, such as judicial supervision or house arrest with electronic monitoring, particularly where advanced age increases health risks, in accordance with Article 142–5 of the same Code. In cases where the defendant is placed under guardianship, the guardian must be notified and granted the right to access the case files and to participate in hearings, as affirmed by the Court of Cassation in its ruling of 30 January 2019, which held that failure to provide such notification constitutes grounds for annulment of the proceedings, except in exceptional circumstances (Cour de cassation, 2019; Cour de cassation, 2018; Cour de cassation, 2020).

Before the judge of liberty and detention, who is competent to order and extend pre-trial detention under Article 144 of the Code of Criminal Procedure, advanced age is considered among the factors relevant to assessing the “exceptional necessity” of pre-trial detention, with particular attention given to the compatibility of detention with the defendant’s health condition. Where age-related vulnerability is confirmed through a medical examination, pre-trial detention may be refused and replaced by judicial supervision or house arrest with electronic monitoring. This approach is consistent with the jurisprudence of the European Court of Human Rights (ECHR), notably in Helhal v. France (2015), in which France was found to have violated the rights of a disabled elderly person (European Court of Human Rights [ECHR], 2015, para. 55; Céré, 2015a; Céré, 2015b; Burgorgue-Larsen, 2015; Pastre-Belda, 2015).

It should be noted that, under French law, pre-trial detention may not be imposed on any defendant, whether ordinary or elderly, unless it is established that the objectives of pre-trial detention cannot be achieved through judicial supervision or electronic monitoring. Pre-trial detention therefore constitutes a measure of last resort, to be applied only where no alternative measure is sufficient. The authority issuing a pre-trial detention order must justify its decision on a realistic basis, having regard to the circumstances and facts of the case and the personal condition of the defendant (Pinel, 2019).

By contrast, the UAE Federal Code of Criminal Procedure does not recognize the institution of the investigating judge, as investigations and prosecutions are conducted by the public prosecution (Cornacchia & Scollo). The Code contains no provision requiring the public prosecution to refrain from imposing pre-trial detention on elderly defendants or to consider electronic monitoring as an alternative measure. It is argued that the UAE legislator’s adoption of electronic monitoring⁵ presents a significant opportunity to enhance procedural treatment for elderly defendants whose vulnerability is established due to age. Accordingly, it is recommended that the law provide that electronic monitoring be adopted as the primary option by the competent authorities, with recourse to pre-trial detention permitted only where a reasoned decision demonstrates that electronic monitoring is insufficient to achieve the objectives of pre-trial detention in the specific case.

The French judicial system reflects a humanitarian commitment to taking advanced age into consideration in criminal proceedings through legal protection measures such as full guardianship (tutelle) or partial guardianship (curatelle), which are frequently imposed on elderly persons due to the deterioration of their capacities. These measures ensure the participation of the guardian or curator in the protection of the individual’s interests, reflect the principles of dignity and equality enshrined in the French Constitution and European treaties, and reduce the risk of abuse during prosecution or detention.

Article 706–113 of the French Code of Criminal Procedure requires notification of the guardian of any judicial proceedings or alternative measures, such as mediation or settlement, and confers additional rights, including access to the case file under the same conditions applicable to the defendant and automatic visitation rights during pre-trial detention. This provision has been applicable in its current form since 1 July 2025.

In its decision of 30 January 2019 (Cour de cassation, 2018; Cour de cassation, 2019; Cour de cassation, 2020), the Criminal Chamber of the French Court of Cassation held that failure to notify the guardian or curator in criminal proceedings may lead to the annulment of procedural acts, particularly where such failure results in an infringement of the protected person’s rights of defense. At the same time, the Court recognized exceptions in cases of urgency or where it is impossible to ascertain the existence of a protective measure, striking a balance between the requirements of judicial efficiency and the humanitarian protection of elderly persons or individuals with special needs.

At the outset, it should be noted that, although statutory mitigating circumstances were removed from the new French Penal Code, they have effectively persisted through the principle of individualization of punishment, which takes into consideration both the circumstances of the offence and the personality of the offender. By contrast, Emirati law has expressly adopted general mandatory statutory mitigating excuses under Article (97) of the Federal Crimes and Penalties Law. According to this provision, “Extenuating excuses include the young age of the perpetrator, committing of the crime for non-malicious motives or due to the fact that the victim has unjustly and dangerously provoked him.” Pursuant to Article (98), where any of these excuses is established in respect of a felony, the death penalty is reduced to life or temporary imprisonment, or to imprisonment for a term of not less than one (1) year; life imprisonment is reduced to temporary imprisonment or to imprisonment for a term of not less than six (6) months; and temporary imprisonment is reduced to imprisonment for a term of not less than three (3) months, unless the law provides otherwise.

With regard to the mitigation of misdemeanor penalties where a statutory mitigating excuse exists, Article (100) of the Federal Crimes and Penalties Law provides that:

It is evident from the wording of Article (97) that the statutory mitigating excuses expressly recognized therein are the young age of the offender, the commission of the offence for non-malicious motives, or serious provocation unjustly caused by the victim. The provision does not refer to advanced age as one of these excuses. Nevertheless, it explicitly adopts age as a relevant criterion by recognizing young age as a ground for mitigation. It is important to clarify that “young age” in this context does not refer to juveniles who have not exceeded eighteen (18) years of age, as juvenile offenders are governed by the special rules set out in the Juvenile Delinquents Law and therefore fall outside the scope of this general mandatory statutory excuse. Rather, the provision applies to persons who have surpassed the age of eighteen and have thus attained full criminal responsibility, yet remain at an early stage of adulthood. The legislator takes into consideration this early phase of life, which reflects limited life experience and insufficient familiarity with its diverse circumstances and challenges, and accordingly allows such offenders to benefit from mandatory mitigation.

The legislative rationale underlying this approach is that such individuals should not be equated with others who have acquired greater life experience enabling them to exercise sound judgment. This philosophy reflects an understanding that mitigation is not confined to the mere fact of young age as an irrebuttable legal presumption of weakness, as is the case with juveniles, but is instead grounded in the recognition of a plausible connection between youthfulness and vulnerability. In this sense, vulnerability may manifest in limited experience or a reduced capacity to regulate reactions when compared with individuals who have passed beyond this stage of life.

On this basis, the higher courts of the UAE have interpreted the notion of “young age” by reference to the concept of attaining full legal majority under civil law, namely twenty-one (21) years of age. In clarifying the scope of young age, the Federal Supreme Court has held that young age constitutes a mandatory statutory mitigating excuse under Article ninety-six (96) of the Federal Penal Code and must be applied by the judge whenever its conditions are satisfied, with the penalty reduced in accordance with Articles (97) or (99), as distinct from discretionary mitigating circumstances. The Court further explained that young age is not limited to persons under eighteen (18) years of age, who are governed by juvenile legislation, but extends to those who have exceeded eighteen yet have not attained twenty-one (21) lunar years, in accordance with Article (85) of the Civil Transactions Law, as they have not yet reached full legal maturity. In the case at issue, the appellant argued that he had not exceeded twenty (20) years of age, yet the impugned judgment erred in treating mitigation as discretionary, thus conflating mandatory statutory excuses with discretionary mitigating circumstances. This error prevented the court from examining the conditions of the excuse and warranted the quashing of the judgment (Federal Supreme Court, 1994; Ras Al Khaimah Court of Cassation, 2016).

Accordingly, a person who has exceeded eighteen (18) years of age but has not attained full legal majority, twenty-one (21) lunar years pursuant to Article (85) of Federal Law No. five (5) of (1985) Concerning the Issuance of the Civil Transactions Law is considered to possess diminished legal capacity due to incomplete maturity and sound judgment. Where this condition is established, it constitutes a mandatory mitigating excuse that the court is required to examine and apply, leading to a reduction of the penalty. This excuse reflects a legal philosophy that acknowledges the immaturity associated with youth and favors rehabilitation over severe punishment.⁷

In light of this legislative philosophy adopted by the Emirati legislator, it is submitted that this mandatory mitigating excuse should be extended to encompass elderly persons who have exceeded an age that reflects a decline in emotional control and sound judgment. The same rationale that prompted the legislator to grant young offenders a general mandatory statutory mitigating excuse applies, by analogy, to elderly persons. Accordingly, this research calls upon the Emirati legislator to amend Article (97) of the Federal Crimes and Penalties Law by adding advanced age, defined as exceeding seventy-five (75) years, as a mandatory statutory mitigating excuse.

It should be noted that the mitigation of felony penalties may result in imprisonment for a term of not less than one (1) year, six (6) months, or three (3) months, depending on the original penalty prior to mitigation. This allows the judge to impose a reduced sentence that may be subject to suspension of execution, where the offender’s prior conduct, personal history, and age indicate a low risk of reoffending. Extending mandatory mitigation to elderly offenders would therefore produce a dual effect: the penalty would be mandatorily reduced, and where the resulting sentence does not exceed one (1) year, the offender may benefit from suspension of execution. This approach is particularly justified given that the legislator has identified the offender’s age, without distinguishing between early or advanced age, as a relevant criterion for ordering suspension of execution, encompassing both stages of life in which similar considerations favor leniency and rehabilitation over strict punishment.

Article 52 of the Mexican Criminal Code provides that “The judge shall determine the penalties and security measures deemed just and within the law, based on the seriousness of the crime and the degree of liability of the agent, taking into account: … age, education, training, habits, and the social and economic circumstances of the individual, in addition to the motives that led him to commit the offence.”

Furthermore, Article 55 of the same Code stipulates that “in the case of persons over seventy (70) years of age, or in situations of advanced age, serious illness, or deteriorated health, or where the execution of a custodial sentence would result in severe consequences for the convict due to age or health condition, the judge may replace imprisonment with a security measure, provided that an expert report confirms this and the convicted person does not pose a social risk.”

In a similar vein, Article 65 of the Brazilian Criminal Code provides that “it shall always be considered a mitigating circumstance if the offender is over seventy (70) years of age on the day the judgment is pronounced.” This provision renders age above seventy (70) an automatic mitigating circumstance, which may lead to a reduction of the penalty by one-third to one-half, depending on the nature of the crime. Sexual violence offences against women are expressly excluded. This reflects a measure of clemency toward elderly offenders and aligns with Law No. 7.210 of 1984 on Criminal Enforcement, which mandates that elderly prisoners above sixty (60) years of age be detained in facilities appropriate to their health conditions.

Similarly, the Nicaraguan Penal Code recognizes advanced age as a mitigating circumstance encompassing the physical or mental frailty associated with ageing. Although not fixed at a specific age, it is generally applied to individuals above 65–70 years of age. Judges may reduce or replace the sentence in accordance with constitutional protections afforded to the rights of the elderly (Article 43).

Article 29 of the Ecuadorian Criminal Code stipulates that “attaining the age of sixty-five (65) constitutes a mitigating circumstance. Advanced age, or physical frailty resulting from ageing, shall be considered a mitigating circumstance for criminal liability.” This provision classifies age above sixty (60) as a mitigating factor, allowing judges to reduce the sentence or substitute it with non-custodial measures such as supervision or treatment, particularly where mental or physical weakness is established. This complements Article 146, which addresses offences against life, emphasizing rehabilitation rather than punishment for elderly offenders.

Article 10 of the Argentina Criminal Code provides that “at the discretion of the competent judge, imprisonment may be served under house arrest: […] (d) for prisoners over seventy (70) years of age.”

Likewise, Article 7 of the same Code stipulates that “frail or ill persons over sixty (60) years of age who are sentenced to imprisonment shall be subject only to the type of labor assigned by the institution’s administration.”

Drawing on this legislative philosophy within the Emirati legal system and the aforementioned codes, it appears appropriate to extend this mitigating circumstance to elderly persons who have surpassed a certain age threshold, reflecting a natural decline in their capacity to control impulses and exercise sound judgment. The same rationale underpinning the legislator’s recognition of a general mitigating legal excuse for youthful offenders is equally applicable to elderly individuals. Accordingly, it is recommended that the UAE legislature amend Article 97 of the Federal Penal Code to include advanced age resulting in diminished capacities as a legally mandatory mitigating circumstance.

Pursuant to Article 99 of the Federal Penal Code, “if the court finds in a felony that the circumstances of the crime or the perpetrator calls for clemency, it may extenuate the penalty prescribed for the felony as follows: 1. If the penalty prescribed for the felony is death, it may be reduced to life or temporary imprisonment. 2. If the penalty prescribed for the felony is life imprisonment, it may be reduced to temporary imprisonment or incarceration for a period not less than (6) six months. 3. If the penalty prescribed for the felony is temporary imprisonment, it may be reduced to incarceration for a period not less than (3) three months.”

It is noteworthy that, in addition to adopting mandatory general mitigating legal excuses, the UAE legislator has also recognized discretionary judicial mitigating circumstances, the application of which is left entirely to the court’s assessment. The law does not delineate specific criteria for such circumstances; it merely provides that, where the court considers the circumstances of the crime or the offender to justify leniency, it may apply mitigation in felony cases to a degree slightly less than that afforded under mandatory legal excuses. In misdemeanors, the effect of mitigation based on discretionary circumstances is identical to that of legal mitigating excuses.

This legislative approach implies that the determination of the existence of such circumstances falls within the discretion of the judge, as the statutory text does not enumerate particular mitigating factors. The legislator is cognizant that the criminalization process necessarily entails abstract normative assessments that cannot fully account for the particularities of each case or the personal characteristics of the offender (Merle & Vitu, 1981, para. 750). Accordingly, discretion is vested in the judiciary to ensure a practical and context-sensitive application of the law, tempering the inherent rigidity of penal provisions (Garraud & Garraud, 1934, para. 226).

It may be argued that elderly offenders could, in principle, benefit from discretionary judicial mitigating circumstances, insofar as the legislator refers broadly to the circumstances of the offender. However, this criterion remains excessively general, and discretionary mitigating circumstances are optional in nature, meaning that their application may vary from one judge to another, particularly with respect to the age threshold considered sufficient to justify mitigation. Moreover, the UAE legislator does not require courts of first instance to provide reasons for the choice of penalty, which leads to considerable disparities in judicial assessments and does not ensure that elderly offenders consistently benefit from mitigation. This reality underscores the necessity of expressly including advanced age among the legally mandated mitigating excuses.

Article 84 of the UAE Federal Crimes and Penalties Law provides that:

“The court may, upon rendering in a crime a judgment condemning to a non-proportional fine or to imprisonment for a period not exceeding one year, order in the judgment a stay of execution of the penalty if it finds in the character of the convict, his past history, his age or from the circumstances in which the crime was perpetrated, reason to believe that he will not perpetrate a crime anew. The court may include in the stay of execution order any ancillary penalty except confiscation.”

It follows from this provision that where the penalty imposed consists of a non-proportional fine or imprisonment not exceeding one year, the court is vested with discretionary authority to suspend the execution of the sentence if it is persuaded—having regard to the offender’s character, prior conduct, age, or the circumstances surrounding the offence—that the offender is not likely to reoffend.

It is therefore apparent that age constitutes one of the criteria that the judge may take into consideration when determining whether to suspend the execution of the sentence. However, age in itself is not sufficient; it must operate as an element contributing to the court’s conviction that the offender will refrain from committing further offences despite the non-execution of the penalty.

Article 152 of the Federal Crimes and Penalties Law provides that: “In addition to the events stipulated by a special provision, the judge may pardon the perpetrator in misdemeanors, in any of the following events:

In the event of pardon, the judge may give such advice and guidance to the perpetrator as he deems fit, and shall warn him that he shall not benefit from a new pardon in the future.”

Article 153 of the same law further stipulates that “The pardon, whatever its type, shall be without prejudice to the rights of the litigants or third parties.”

Although the UAE legislator, in regulating judicial pardon of penalties, has taken the age factor into account, this consideration is confined to early age. As reflected in Article 152, the judge may grant a pardon in misdemeanors where the offender has not completed twenty-one (21) years of age. This age undoubtedly corresponds to an early stage of human development, often characterized by limited life experience, inaccurate assessment of encountered situations, potentially ill-considered choices, and heightened susceptibility to external influence, all of which may contribute to the commission of an offence. It is therefore submitted that the scope of judicial pardon should likewise extend to elderly persons who may be in a state of weakness, rendering their placement in penal institutions inappropriate.

By contrast, French law also recognizes the system of judicial pardon of penalties, yet it does not refer to age as a relevant factor. Accordingly, unlike UAE law, it does not expressly allow early-age offenders to benefit from judicial pardon on this basis. It should nevertheless be emphasized that the imposition of a penalty as a response to the commission of a crime, irrespective of its gravity, is not an end in itself (Cotte & Minkowski, 2018, p. 6). Rather, the penalty must be useful and capable of achieving its intended objectives. These objectives, as set out in Article 130–1 of the French Penal Code, are the protection of society, the prevention of future offences, and the restoration of social equilibrium (Loi n° 2014–896, 2014, art. 1er). To this end, the functions of punishment, as defined in the first paragraph of that article, consist in punishing the offender, promoting their reintegration into society, and restoring social balance. Consequently, where the judge is satisfied that these objectives have been achieved without the need to impose a penalty, they may decide to grant a judicial pardon.

Judicial pardon thus operates as a mechanism by which the judge acknowledges the offender’s criminal responsibility while refraining from imposing any sanction, where it is apparent that the offender’s rehabilitation has been achieved, the harm has been remedied and compensated, and the social disturbance caused by the offence has ceased. It is a system that permits a declaration of guilt without the imposition of any penalty.

Accordingly, French law does not expressly link judicial pardon to age, whether early or advanced. Nevertheless, this does not preclude elderly persons or those in early adulthood from benefiting from a pardon, provided that the statutory conditions prescribed by law are satisfied.

The advanced age of a convicted person is taken into account as a factor capable of mitigating the severity of detention or justifying alternatives during the enforcement of the sentence (Gaydon & Miller, 2007). For example, the case of Maurice Papon constitutes a prominent historical illustration in this respect. Sentenced at the age of eighty-eight to ten years’ imprisonment for complicity in crimes against humanity, his case prompted important judicial reflection. Although the European Court of Human Rights (ECHR), in its decision of 7 June 2001, held that the conditions of his detention did not reach the threshold of a violation of Article 3 of the European Convention on Human Rights, it nevertheless affirmed a fundamental principle: that “where advanced age is combined with a serious deterioration in health, continued detention may in itself amount to degrading or inhuman treatment prohibited under Article 3,” which provides that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment” (European Court of Human Rights [ECHR], 2001).

This principle was subsequently developed by the ECHR, notably in Mouisel v. France (14 November 2002), which is one of the earliest judgments to elaborate the protection of the dignity of elderly or ill prisoners during detention. The case concerned a complaint lodged by a French prisoner, Jean Mouisel, challenging the compatibility of his detention with his deteriorating health condition (European Court of Human Rights [ECHR], 2002).

The ECHR held that Article 3 of the European Convention on Human Rights protects individuals against treatment causing suffering exceeding what is strictly necessary, and that the imprisonment of an elderly and seriously ill person may breach this provision where it is incompatible with their state of health. It established that the applicant’s chronic leukemia required intensive medical treatment and that his transfer in shackles during treatment was “disturbing and inappropriate” given his physical frailty, resulting in excessive suffering.

Rejecting France’s argument that detention was justified by security considerations, the ECHR emphasized that such considerations, including the risk of escape, must rank below health risks. It found a violation of Article 3 of the European Convention on Human Rights, awarded EUR 10,000 in compensation for non-pecuniary damage, and ordered an immediate review of the conditions of detention, the provision of appropriate medical care, and consideration of temporary release. Indeed, the convicted person was temporarily released for medical treatment in 2003. This judgment illustrates how health-related vulnerability may transform imprisonment into prohibited treatment, while reaffirming the centrality of human dignity for elderly convicted persons.

It follows that a prisoner must be medically fit to endure imprisonment, and that States are under an obligation to adapt detention conditions to the needs of elderly inmates, ensuring appropriate care for those suffering from illness or disability.⁸ While neither the European Convention nor the ECHR’s case law prohibits the detention of elderly persons, even when ill or disabled, they nevertheless oblige prison authorities to provide care appropriate to the specific needs of older persons when they suffer from debilitating illnesses or loss of autonomy.⁹

The European Court of Human Rights has also addressed the issue of reliance on fellow inmates to assist elderly or disabled prisoners (Loi n° 2015–1776, 2015). In Farbtuhs v. Lithuania, the Court held that “the anxiety usually experienced by such a disabled person, knowing that no qualified assistance would be available in the event of an emergency, constitutes a serious problem under Article 3 of the Convention” (European Court of Human Rights [ECHR], 2004; Flauss, 2005; Massias, 2005). It further found that, notwithstanding the arrangements put in place by the prison administration, the elderly prisoner was not medically fit for permanent detention, and that the continuation of detention amounted to inhuman or degrading treatment justifying suspension. Similarly, in Helhal v. France, the ECHR held that assistance by another inmate in washing clothes, in the absence of adequate bathing facilities, was insufficient to discharge the State’s obligations with respect to health and safety (European Court of Human Rights [ECHR], 2015).

Reference must also be made to Ferguson v. the United Kingdom (19 November 2013), which significantly contributed to the development of the principle of protecting the dignity of elderly or ill prisoners during sentence enforcement (European Court of Human Rights [ECHR], 2013). This judgment is widely regarded as the first to impose on a State an obligation to permanently release elderly, seriously ill prisoner on the basis of Article 3 of the European Convention on Human Rights.

Despite the profound deterioration in the health of the elderly prisoner Ferguson, who suffered from multiple chronic illnesses, including advanced bladder cancer, renal failure, prostate enlargement, cardiovascular disease, and severe physical weakness, required the use of a wheelchair, and depended on daily assistance for basic activities, the British Ministry of Justice repeatedly rejected his requests for compassionate release under domestic law. The authorities argued that his condition was not sufficiently “terminal” and emphasized the extreme seriousness of the offence. He remained in prison, where healthcare was inadequate, and was subjected to repeated transfers in shackles, delays in medical treatment, and a lack of privacy during examinations. Although the High Court dismissed his application on the ground that a life sentence did not contravene Article 3, the European Court of Human Rights, on 19 November 2013, found a violation of Article 3, ordered his immediate release, and awarded EUR 20,000 in compensation for non-pecuniary damage.

The Court stressed that the continued detention of an elderly person suffering from a critical and incurable condition constitutes degrading treatment where there is no realistic prospect of recovery or significant improvement. It further held that States are required to periodically reassess detention when an inmate’s health deteriorates, even in cases involving particularly serious offences. Human dignity, the Court emphasized, is not extinguished by a criminal conviction, and the continuation of detention under conditions causing excessive suffering violates Article 3. The Court rejected the argument that the seriousness of the offence could justify continued detention, reaffirming the absolute nature of Article 3. Following the Ferguson judgment, the State’s obligation evolved from a mere duty to review detention conditions to a concrete obligation to order release where detention itself becomes degrading treatment as a result of age and illness.

Article 720–1-1 of the French Code of Criminal Procedure constitutes a significant legal framework embodying the humanitarian character of the French criminal justice system. This provision was introduced as part of reforms aimed at striking a balance between the enforcement of sentences and the preservation of the dignity of convicted persons, particularly in situations involving life-threatening health conditions. It was most recently amended by Ordonnance No. 2019–964 of 18 September 2019. The article provides for the suspension of the execution of a criminal sentence on medical grounds, subject to the absence of a serious risk of reoffending, for convicted persons suffering from life-threatening illnesses or health conditions incompatible with detention, while preserving the possibility of judicial supervision to ensure that public security is not endangered. Notably, such suspension is not limited in duration and applies regardless of the nature or length of the remaining sentence.

Proceedings are initiated by an application submitted to the sentence enforcement judge or the court, with the possibility of representation by counsel where the convicted person’s health condition prevents personal attendance. The adversarial principle is respected during the hearing, and the court may impose obligations or restrictions such as compliance with medical treatment or prohibitions on certain activities pursuant to Articles 132–44 and 132–45 of the French Penal Code.¹⁰

Periodic medical examinations may be conducted every six (6) months, and the suspension may be terminated if the conditions justifying it change, if the convicted person fails to comply with the additional obligations imposed, or if a serious risk of reoffending emerges. Proof that the convicted person suffers from a life-threatening illness or that his or her health condition is incompatible with continued detention must be established through an independent medical expert assessment. In urgent cases, a certificate issued by the attending physician is sufficient. This framework reflects a balance between humanitarian considerations and public security, as suspension is precluded where a serious risk of reoffending exists.

In the medical context, the French National Academy of Medicine has identified a range of relevant conditions such as neurological diseases or chronic renal failure rendering suspension a mechanism to prevent death in custody or the exacerbation of suffering. Moreover, the absence of a temporal limitation distinguishes this form of suspension from ordinary, time-bound suspensions.

It should be noted that in 2005, the French Court of Cassation established a stringent requirement for granting sentence suspension, namely that the convicted person be suffering from a life-threatening illness “in the short term” (Cour de cassation, 2005). This condition significantly restricted the granting of suspensions, excluding, with limited exceptions, persons suffering from degenerative diseases with slow but irreversible progression. In a more recent judgment, the Court of Cassation reaffirmed this requirement relating to short-term life expectancy (Cour de cassation, 2025). In that case, a request for sentence suspension submitted by a prisoner suffering from multiple brain injuries was rejected on the ground that, notwithstanding the severity of those injuries, “it was not possible to determine a precise terminal prognosis.” This illustrates the Court of Cassation’s strict approach in interpreting the conditions governing medical suspension of sentences. Consequently, prisoners suffering from serious illnesses whose life expectancy cannot be predicted in the short term are unlikely to benefit from sentence suspension.

It is noteworthy, however, that as early as 2006, the French Court of Cassation implicitly indicated that the conditions set out in Article 720–1-1 of the Code of Criminal Procedure are not cumulative but alternative (Cour de cassation, 2006). Accordingly, a prisoner may be granted sentence suspension on medical grounds where the health condition is permanently incompatible with detention, even if such condition does not involve a short-term threat to life.

In this regard, reference should also be made to the judgment of the French Court of Cassation of 26 June 2013, which endorsed a broader interpretation of Article 720–1-1 of the Code of Criminal Procedure (Cour de cassation, 2013). Where a request for sentence suspension had been refused due to a lack of concordance between two medical expert reports regarding the convicted person’s health condition, the Court held that the judge must nevertheless examine whether the continuation of detention constitutes inhuman treatment, even where the formal conditions for suspension are not met. This judgment has become a precedent affording judges greater flexibility and reinforcing the humanitarian dimension of this provision.

It is also useful, in this context, to refer to the United States, which recognises a system of compassionate release. This system allows prisoners to apply directly to the court where the Federal Bureau of Prisons has denied a request for release. Medical grounds for compassionate release include the existence of a terminal illness with a life expectancy of less than eighteen (18) months, or permanent disability, provided that the convicted person is sixty-five (65) years of age or older and has served a period of imprisonment not less than ten (10) years of their sentence.

Article 298 of the Code of Criminal Procedure provides that, where a person sentenced to a custodial penalty is suffering from an illness that threatens their life, whether by its nature or as a result of the execution of the sentence, the execution of the sentence may be postponed. Although this provision allows for the postponement of custodial sentences in cases involving elderly convicts afflicted with life-threatening illnesses, such postponement remains discretionary, meaning that it may be refused even where a serious risk is established. Accordingly, it is advisable to amend this provision so as to render postponement mandatory in such cases, in order to guarantee that elderly convicts suffering from life-threatening illnesses benefit from a secure deferment of sentence execution.

It is apparent that, like many other legal systems, the UAE legislator has accorded particular attention to the age group comprising individuals who have attained eighteen (18) years of age but have not exceeded twenty-one (21) years, considering this category a transitional age group. This group benefits from special penal treatment, and correctional institutions are required to allocate separate facilities for them, ensuring that they are not housed with other inmates. The scope of the transitional age category may be amended by ministerial decree.

Article 46 of the Law Regulating Penal and Correctional Institutions regulates the care of inmates belonging to the transitional age group. However, this provision contains no reference to elderly inmates who, by reason of their advanced age and associated vulnerability, are equally in need of special consideration. The article provides that the Ministry, in coordination with the competent authorities, shall develop annual programs dedicated to the care of inmates in the transitional age group and grant them the benefits prescribed under the law and its executive regulations.

Inmates in the transitional age group defined as those who have reached eighteen (18) years of age but have not exceeded twenty-one (21) enjoy a number of privileges within correctional institutions, including the granting of exceptional leave under Article 47, which provides that:

In addition, Article 48 permits the application of a restricted freedom system to transitional-age inmates, allowing them to work outside the correctional facility in the public or private sector, in coordination with the competent authorities and in accordance with the conditions set out in the executive regulations of the decree-law.

• • Introduce mandatory medical examinations in cases involving age-related vulnerability, modeled on the requirements set forth in Article 63–3 of the French Code of Criminal Procedure.

• • Establish electronic monitoring as the primary measure for elderly convicts exhibiting age-related weakness, such that custodial detention is resorted to only where the competent authorities expressly demonstrate, through a reasoned decision, that electronic monitoring is insufficient to achieve the objectives of pretrial or preventive detention in the particular case.

• • Amend Article 97 of the Federal Crimes and Penalties Law, which enumerates general mitigating legal excuses, to include advanced age exceeding seventy-five (75) years as a mandatory mitigating factor.

• • Broaden the scope of judicial clemency to encompass elderly convicts in a state of vulnerability for whom incarceration in correctional facilities is deemed inappropriate.

• • Amend Article 298 of the Criminal Procedures Law to render the postponement of custodial sentences mandatory where the convict suffers from an illness that poses a threat to life, whether by its nature or as a result of sentence execution. This would ensure that elderly convicts affected by such illnesses benefit from a guaranteed deferment of sentence execution.

• • Establish a dedicated regime of penal treatment for elderly inmates within the Law Regulating Penal and Correctional Institutions, akin to that applicable to the transitional age group. This regime should provide age-appropriate privileges, permit the application of restricted liberty measures, and, where feasible, allow recourse to house arrest under electronic monitoring in cases where the release of the elderly convict from the correctional facility does not pose a threat to public safety.

No primary datasets were generated or analysed during this study. The research is based exclusively on publicly available legal and documentary sources, including legislation, judicial decisions, international legal instruments, policy documents, and peer-reviewed scholarly literature. The legal materials used in this study are publicly accessible through official legislative and governmental databases, including the UAE Legislation Portal, which provides access to Federal Decree-Law No. (38) of 2022 Promulgating the Criminal Procedures Law (https://uaelegislation.gov.ae/en/legislations/1609), the Official Gazette of the United Arab Emirates, Légifrance (https://www.legifrance.gouv.fr) for French legislation, and the HUDOC database of the European Court of Human Rights (https://hudoc.echr.coe.int). International legal instruments are available through UNESCO (https://www.unesco.org) and the United Nations Treaty Collection (https://treaties.un.org). All scholarly sources are fully cited in the reference list. Therefore, no additional datasets are associated with this article.

The authors gratefully acknowledge the financial and institutional support provided by United Arab Emirates University through Research Grant No. 12R351. The authors also express their sincere appreciation to the UAEU Public Policy and Leadership Research Center for its valuable academic support and for fostering an interdisciplinary research environment that contributed to the development of this study.

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