Prisoners’ Rights According to the European Convention on Human Rights Essay Example
Prisoners’ Rights According to the European Convention on Human Rights Essay Example

Prisoners’ Rights According to the European Convention on Human Rights Essay Example

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  • Pages: 15 (4064 words)
  • Published: April 8, 2017
  • Type: Case Study
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The fundamentals of human rights – respect to life and dignity of an individual – are present in most great religions and philosophic doctrines of the world. These rights cannot be purchased, earned or inherited. They are called 'inalienable' because they inhere in everyone irrespective of race, colour of skin, language, religion, political or other convictions, national or social origin, property status, birth or any other conditions. After the Second World War the issue of human rights became to turn from merely internal into international one.

Universal Declaration on Human Rights adopted by the UN General Assembly in 1948 was the first important legal act in this field. Five years later in 1953 the European Convention on Human Rights (ECHR) was adopted. The basic human rights were defined by these two international lega

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l documents as the rights to life, property and freedom following the ideas of English philosopher John Locke who regarded them as natural and inalienable rights because being a part of human nature they can be neither granted nor taken away.

In his famous work "Two Treatises on Government" Locke wrote: Man being born […] with a title to perfect freedom and an uncontrolled enjoyment of all the rights and privileges of the law of Nature, equally with any other man, or number of men in the world, hath by nature a power […] to preserve his property – that is, his life, liberty, and estate against the injuries and attempts of other men. This idea was brilliantly formulated by the US founder Hamilton who said: "The sacred rights of mankind are not to be rummaged for among old parchments or musty records.

They are written,

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as with a sunbeam in the whole volume of human nature, by the hand of the divinity itself, and can never be erased or obscured by mortal power". Considering these lofty ideas the democratic societies developed justified and balanced attitude to their members having broken the law and being condemned to deprivation of freedom. This attitude is based on a notion that the punishments should be executed humanely having respect for dignity of a prisoner, and limitation of his rights could not exceed the edge necessary for execution of punishment.

The penalty of confinement is severe enough itself. Therefore in its execution it is reasonable to strive for not depriving the prisoners of their right which were unforeseen by their punishment. The ECHR forms legal framework for such protection of the prisoners' rights. It declared basic human rights, put into practice the principle of maintenance and further exercise of human rights and fundamental freedoms, and created a mechanism of their protection – the European Court of Human Rights (the Court).

The purpose of this paper is to scrutinise the ECHR with regard to prisoners' rights, to evaluate its importance for ensuring prisoners' rights, to explore how the provisions of the ECHR are realized in practice, to consider corresponding cases, and make the conclusions. The Basic Rights of the Prisoners The individuals deprived of freedom are vulnerable because of their status. The main goal of the punishment is re-education of an offender and returning him to the society as an equitable citizen.

But it is impossible to re-educate putting him into inhuman conditions. Although the prisoner is guilty in commission of crime and subjected to punishment consequently, it does

not mean he should be deprived of the basic human rights. Undoubtedly bad and detrimental to health treatment is not justified, useless and inadequate. It causes irreparable physical and moral damage to the prisoner and by no means contributes to his re-education.

Hence, the state has to ensure observance of the basic human rights of the individual regardless of the fact he is either law-abiding citizen or the prisoner. Thus the prisoner retains his civil and political rights, as well as his economic, social and cultural rights. Not all the standards of international law concerning treatment of the prisoners impose explicit obligations on the states. But some of them such as abolition of discrimination, tortures and degrading treatment and the right to social maintenance relate to absolute standards.

To our time in public opinion the old natural rights philosophy still has substantial influence. Its advocates argue that if a person infringes the rights of another person he forfeits own rights. Consequently, a violator becomes deprived of his rights. Fortunately this idea of total forfeit of rights is not supported by the international treaties in the field of human rights protection basing on the notion that a person has rights as a feature of his being human individual or human self.

Hence, if people have rights they should persist to have them even having committed a crime, because after that delinquency they remain still selves, still human beings despite of their internal moral strains. Martin justly noted given that these individuals haven't lost the status owing to which they are entitled to "these important, morally based civil rights, it […] isn't open […] to say that the original offenders

have forfeited or become dispossessed of their basic constitutional rights".

In any case the prisoners are not persona non grata, even after commitment of an offence they remain within the system of rights. Being deprived of liberty they lose their freedom partially but restriction should not overstep the limits of necessary measures applied to them by the court's decision.

They retain almost all basic rights – to be free of the injury of torture, to exercise voting right, to have access to juridical advocacy and confidential contacts with legal adviser, to communicate with outside world (family etc. , to have freedom of speech and conscience, to exercise freely religion, to get education, to work, to have minimum necessary conditions for living in the place of detention which do not humiliate human dignity. The more vulnerable here seem to be the right to security of person and to have necessary living conditions as in often existing situation of overcrowding in jails it is difficult to ensure privacy and provide adequate living conditions for the inmates.

The international standards prescribe for prisons administrations to provide necessary for the health sanitarian norms and security of the inmates, to implement cultural and educational programmes for the prisoners aimed at comprehensive development of human personality, to ensure an access of the inmates to information – newspapers, books etc. Besides the administrations have to provide the prisoners with the possibility to have everyday walk outdoors and indulge in sport. In reality there are many problems in achieving sufficient living conditions for the prisoners.

In 1999 the Chief Inspector of Prisons in the UK Sir David Ramsbotham announced that the jails where remand prisoners and those

having short sentences are kept need urgent and substantial betterments. He reported that for instance 1,083 prisoners were kept in Birmingham jail while its normal capacity is 743 persons. Also he noted that the healthcare centres in the UK prisons are in a terrible plight. And these are not the only problems of penitentiary systems both in the UK and in other EU member states.

Zimring and Hawkins noted the defensive nature of human rights provisions for the prisoners arguing that respect to the human dignity of the offender is a strategy "to prevent the erosion of citizen claims against government, to prevent regressions applied to the least popular of dependant populations, which might thereafter be applied more broadly". They sceptically ascertained that the integrity of a human rights schedule cannot be solely based on the prisoner's interests where protection of prisoners' rights is necessary but not adequate prerequisite for the human rights agenda.

At the same time they revealed the versatile essence of defensive strategy when during the periods featured by increasing authorities' concerns for the citizens, the backing of the prisoners' rights seems to be somewhat easier and less necessary for the protection of other vulnerable groups of population. Here there is one more important aspect. Financing and management of appropriate penitentiary facilities makes a serious challenge to the states, but it is of great importance for maintaining sufficient conditions for observance of prisoners' rights.

Jacobs with a pity states that this task has not became a high priority for the governments while last time the courts have undertaken the role of monitoring the prisons and ensuring that living conditions for the prisoners comply with the

minimum standards for the purposes of their rights observance. The 'slopping out' case tried by the Court of Session in Edinburgh in Scotland last year could serve as a striking example of manifestation of this role.

Scholars pointed out that the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment reported about "overcrowding, the practice of 'slopping out', and the paucity of regime activities […] [which] amount to 'inhuman and degrading' treatment" in British prisons. A judge in the 'slopping out' case Lord Bonomy also equated the practice of 'slopping out' by the prisoners using a bucket in their cell as a toilet facility to degrading treatment which violates Article 3 and Article 8 of the ECHR as well as the common law "duty of care".

Therefore, he awarded ? 2,400 compensation to Robert Napier - the former prisoner of Barlinnie Jail in Glasgow who was forced to slop out. The sum which the prisoner won seemed to be too small, but concernment of this case lay in another aspect – Lord Bonomy's judgement established a legal precedent which could show the way for more inmates to claim similar compensation payments. Furthermore, this judgement clearly demonstrates that the prisoners in fact have legal remedy to maintain their basic human rights and ought to claim when they are outraged.

Analysis of the ECHR Provisions and their Projection on the Prisoners' Rights The most important instrument for human right protection in the European Union is the European Convention on Human Rights developed and adopted by the Council of Europe. It has today even more importance for Europe than the two Covenants on Human Rights of the

United Nations Organization or any other international document. It forms the legal framework of the EU in the field of human rights protection defining and ensuring the most important rights and freedoms.

The ECHR regulates the fundamental rights and freedoms for the countries of Europe and provides the individual with the possibility to bring his case before a court that is above the state jurisdiction. This individual appeal to the European Court of Human Rights undoubtedly is of special importance, because it is a clearly stronger instrument for the protection of the rights of the individual person than the instrument of state reports that is common with other systems of human right protection.

The ECHR in fact makes no specific reference to those in detention, but it is implied that the prisoners retain the basic human rights like all citizens. That is why the Court is trying the cases regarding violations of the prisoners' right and very often its decisions are in favour of the prisoners. The Court has rejected an idea that those in prison can be treated as outlaws, devoid of any rights. Its decisions clearly demonstrate that those in detention do retain some rights, with their content being affected by the status of the person in detention.

The ECHR guarantees not theoretical or insubstantial rights, but those having direct action and practical influence. The provisions of the ECHR are considered the norms of direct effect, and major attention is paid not to the form, but to the content of these rights, when the courts have to investigate the realities concerning the case which is under trial. While interpreting the ECHR it should be perceived as

a single whole rather than aggregate of separate norms to ensure the equitable balance between the public interest and the requirements to protection of the basic rights of an individual.

The principle of proportionality is a juridical basis for establishment of 'reasonable balance': the restrictions on the freedoms which are guaranteed by the ECHR should be proportional to the legal purpose for which such limitations are employed. Besides the reasonable proportional correlation should exist between the measures chosen and the legal purpose for which the corresponding restrictions are established. The ECHR established actually revolutionary system of human rights protection providing for the powerful mechanism of control over fulfilment of the obligations and implemented the principle of collective guarantee of human rights.

An Article 2 of the ECHR considers the right to life. It does not consolidate the right to life itself, but entrusts the states' authorities with the obligation to protect the right of everyone to life and contains the prohibition of intentional deprivation of it. Indeed, it is impossible to interpret the term 'right to life' in a direct sense: the state could not guarantee immortality to anyone, thus 'right to life' is not a positive obligation of the state, but more likely negative one that is 'freedom to live'.

In this case the state has to do everything in its power to ensure the freedom to live and do not interfere in enjoyment of this freedom without absolute necessity. Although the right to life is protected by the ECHR, the Article 2 allows imposition of capital sentence provided that the particular conditions are observed: – fair and open trial (Art. 6); – punishment should not be

inadequate to the committed felony, the choice of place and method of the execution should not contravene to Art. 3; at the moment of commission of crime it has to be punishable with the death penalty (Art. 7); – discrimination during adjudgement, execution of capital sentence, and announcement of oblivion is prohibited (Art. 14).

Here complicated moral problem lies in the procedure of appeal, since, on the one hand, to postpone the execution of the death penalty means to give hope for the discharge or pardon, but, on the other hand, it could be regarded as inhuman treatment because a condemned is living in continual expectation of the execution.

During the decades after the ECHR adoption general tendency in favour of abolition of capital punishment has developed in the member states of the European Council. It led to the adoption of Protocol 6 to the ECHR in 1983. The Article 1 of this Protocol reads: "The death penalty shall be abolished. No-one shall be condemned to such penalty or executed". It is undoubtedly the area of human right protection, where the ECHR has reached a higher level than all other instruments for the protection of human rights do provide.

Today the death penalty is regarded as a form of inhuman and degrading punishment contradicting the principle of human dignity protection that has to be recognized for every human being. The ECHR does not consider the deprivation of life to be infringement of the Article 2 provided that it is a result of use of force if it is absolutely necessary for the protection of any person from lawless outrage, the execution of a legitimate arrest or averting the

escape of a prisoner or a person who was legitimately detained. These exceptions give the state a broad field for manoeuvre in use of force and repressive measures.

Hence they may be interpreted only in conjunction with the principle of proportionality. Such proportionality has to be assessed taking into consideration the nature of an object pursued, risk to life occurred in concrete situation, and risk connected with the possibility of deprivation of life as the result of act of force. The Article 2 imposes the positive obligation upon the representatives of governmental bodies to undertake adequate measures for protection of the prisoner's right to life as well as to apply actions stipulated by the law.

The provisions of the Article 2 should be always considered in complex with the provisions of the Article 13 which, taking into account the special significance of protection of the prisoner's right to life, provides for severer requirements to investigative actions in the cases concerned with the lethal outcome. In the case of death of the prisoner the police have to conduct thorough and effective investigation of all circumstances of the occurrence.

If the information about such circumstances is in the disposal of authorities the former have to submit sufficient and convincing explanations of the occurrence. According to the provisions of the Article 2, the governments have to take measures on protection of the prisoner's life even in case of suicide or attempt of it. Having examined the materials on the case Keenan v the United Kingdom relating to suicide of the prisoner the Court concluded the Article 2 was violated considering volume of information which the prison administration kept and what actions

were undertaken.

The Article 3 of the ECHR prohibits torture. It reads: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment". It is absolute right beyond any limitations under no circumstances. Within the framework of the ECHR there is special convention on this issue – the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT) which is overviewed below. The complaints on cruel treatment and tortures during detention by the police constitute considerable part in the practice of the Court.

Sometimes the authorities try to justify tortures and inhuman treatment by the interests of national security, necessity to struggle against delinquency, or call them 'the methods of investigation'. In the case Ireland v. the United Kingdom the Court examined the applied 5 methods of investigation: wall-standing, hooding, subjection to noise, deprivation of sleep, and deprivation of food and drink. Combination of these methods was considered inhuman and degrading treatment, although not equal to torture.

The Article 4 of the ECHR established the prohibition of slavery and forced labour providing in particular that "no one shall be required to perform forced or compulsory labour" where the latter term excludes work which is "required to be done in the ordinary course of detention imposed according to the provisions of Article 5 […] or during conditional release from such detention". For the prisoners it means they have not to work in the prison, although they have the right to do it. Martin notes that if their work is not compensated or is scarcely compensated, it seems to be rather like a penalty than a right the prisoner retains.

He considers

the prisoners' work is "grey zone somewhere between out-and-out penalty and a full-fledged right to work". But the prisoners' work is so deeply intertwined with the issues of discipline and efficiency, that is with administrative maintenance of the prison itself and the provision of goods and services to the prison or to the state, with the need to help pay for the prisoner's own keep, or with the earning of pin money which the prisoner then spends at the prison store, that the prisoner's work could hardly be considered as an obvious case of penalty or as a pure case of the right to work.

Like in most comprehensive international treaties in the field of human rights the ECHR pays key attention to protection of liberty and personal security. Article 5 of the ECHR is extremely detailed and comprehensive. It contains exhaustive list of admissible reasons for limitations of the individual's liberty. At the same time this article lists appropriate procedural arrangements for ensuring fast and effective trial on the issue of lawfulness of detention.

The Article 5 aims at protection of liberty in classical sense rather than in broader sense characteristic for some other treaties on human rights. The first sentence of the paragraph 1 of the Article 5 refers to the right to liberty simultaneously with the right to personal security. But the remainder part is devoted only to the first from two rights. It allows concluding that the right for personal security in contrast to the right to liberty is formulated in absolute form.

Besides it follows from this that the Article 18 of the ECHR can not be violated in the aspect of the

right to personal security. This article ensures protection against deprivation of liberty rather than other limitations of physical liberty of the person, as the terms 'deprivation of liberty', 'arrest', 'detention' are widely used in the article and taking into consideration that Protocol 4 contains separate provision concerning the restriction of the freedom of movement.

The Article 5 contains a crucial component in protection of an individual’s human rights considering that personal liberty is a fundamental condition for everyone to enjoy life, and "its deprivation […] [has] direct and adverse effect on the enjoyment of many of the other rights, ranging from the right to family and private life, through the right to freedom of assembly, association and expression to the right to freedom of movement".

It especially concerns the prisoners who are in vulnerable position subjecting them to the risk of torture and inhuman and degrading treatment. Such vulnerability increases when establishment of severer limitations on the freedom of the individual who is already deprived of it – transfer from one prison with light security regime to another, where the inmates are very strictly confined – usually is not considered deprivation of liberty for the purposes of Article 5, "since liberty has already been lost as a result of the conviction or other order of confinement".

Nevertheless the practice of the Court delivers the examples when this issue was resolved in favour of the prisoner as in the case Dougoz v Greece. The Court established violation of this article considering that the applicant did not have any remedies to challenge the lawfulness of his lengthy detention which was ordered neither by an administrative decision nor by the court

judgment while the ECHR "requires that any deprivation of liberty should be in keeping with the purpose of Article 5, namely to protect the individual from arbitrariness".

The positive for the applicant decision was taken despite of the fact that he was detained with a view to deportation which itself does not constitutes violation of the ECHR provisions. In another case Iwanczuk v Poland the applicant was detained for four months after the decision was taken that his further detention was unnecessary in waiting for the end of the proceedings relating to the amount and the modalities of payment of the bail which was determined by the Court as violation of the Article 5. The Article 6 of the ECHR provides for the right to a fair trial.

It reads: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". By this article the ECHR constructs the right to fair trial including three quite independent blocks of the rights ensured for all people in general and those occurred in especially difficult situation, like the prisoners, in particular: the right to fair trial; presumption of innocence; and retained by those charged with the criminal offence.

The paragraph 1 of the Article establishes the right of the person during trial of any charge of crime accused to him to exercise the right to just public trial within reasonable period of time by independent and impartial court established by law. Thus this article is applicable only to the trial of the cases where

the civil rights or obligations are being defined or those relating to charges of crime.

This article forms effective instrument for the protection of the prisoners' rights which is proved for instance by the case Brennan v. he United Kingdom when the Court determined violation of this article "in respect of the presence of a police officer within hearing during the applicant’s first consultation with his solicitor after his arrest". The Article 7 aims at securing the freedom of the person from reversionary effect of criminal legislation. It contains two separate legal principles: sentence on the criminal case can be based exceptionally on the legal norm in effect at the moment of commission of crime imputative to the given person; it is prohibited to prescribe punishment which is severer than that having been prescribed at the moment of commission of crime.

Basing on the above considered provisions of the ECHR having great importance for the protection of the basic prisoners' rights it is reasonable to conclude that the convention in fact is the effective instrument to secure the rights of those more vulnerable to deprivation of rights and freedoms. It is based on the principle of respect to human dignity, and now the system of human rights protection created in its framework is a model for other regional remedial systems.

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