Imprisonment and Human Rights

"Deprivation of liberty does not coincide with a deprivation of

physical and mental well-being."

The European Convention for Human Rights does not cease to exist at the threshold of the prison gate. Prisoners enjoy the same fundamental rights and freedoms guaranteed by the ECHR except for the right to liberty as protected by Art. 5. The purpose of imprisonment is rehabilitation and resocialization. Indeed, as the United States District Judge, Luther Lee Bohanon, stated in 1977, “Persons are sent to prison as punishment, not for punishment.”[1] The Convention, however, does not guarantee, as such, a right to rehabilitation, yet the Court’s case-law implies that prisoners should be able to rehabilitate themselves. States have a positive obligation to secure a prison regime that is compatible with the aim of rehabilitation and enables prisoners to make progress towards their rehabilitation.[2] The state must therefore provide the prisoner with a “healthy habituative environment”[3] wherein the “basic habilitative needs of the individual”[4] are met. Prisoners must be able to exercise and enjoy their fundamental rights. Nevertheless, it is inevitable that certain fundamental rights protected by the Convention will be affected by detention. The aim of this paper is to discuss the Convention rights affected by imprisonment, with a focus directed towards those that must be particularly safeguarded. The text of the ECHR and its protocols as well as the case-law of the Court will be drawn upon.

Prisoners are inevitably in a vulnerable position. Access to a lawyer or to court for the purposes of Article 6 provides not only an “important counterweight to the vulnerability of persons in custody” but also a basic protection against coercion and ill-treatment and “contributes to the prevention of miscarriages of justice.”[5] Imprisonment means deprivation of liberty. Deprivation of liberty is only then justified under Article 5 § 1 (a) if the provisions and principles under Art. 6 are protected. Prisoners detained within the jurisdiction of the Convention have the right to submit an individual application before the ECtHR under Article 34, which, especially considering the vulnerable position prisoners are in, must be guaranteed by the authorities. In fact, as stated in Article 34, “High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”[6] Indeed, the Court has ruled that is “of the utmost importance”[7]that individuals have the right to communicate freely with the Court without being subject to any pressure from the authorities.

The status of imprisonment necessarily implies that certain rights are affected. Indeed, as the Court decided in Hirst v. the United Kingdom, “There is no question, therefore, that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction.”[8] States are not obliged to provide education to prisoners if such facilities do not already exist, thus affecting the right to education under Article 2 of Protocol No. 1. The right to vote under Article 3 of Protocol No. 1 is not a “privilege”[9] but rather a “basic principle.”[10] Yet, the rights under Art. 3 of Protocol No. 1 are not absolute, and states are granted a wide margin of appreciation in this respect.[11]Art. 4 § 3 (a) states that “forced or compulsory”[12] labour does not include “any work to be done in the ordinary course of detention.”[13] The Court distinguishes between prison work and other forms of work on the grounds that the aim of prison work is “rehabilitation and resocialization”[14] and that working hours and compensation vary from prison to prison. In fact, the European Prison Rules, a document drafted by the Committee of Ministers of the Council of Europe, state that “prison work shall be approached as a positive element of the prison regime and shall never be used as a punishment.”[15] For security purposes and for the prevention of crime and disorder, certain rights may be restricted. However, any restriction must comply with the principle of lawfulness and pursue a legitimate aim by means proportionate to the aim. A prisoner must be able to exercise his right to practice and manifest his thought, conscience and religion under Art. 9. The European Prison Rules specify that the “prison regime shall be organised so far as is practicable to allow prisoners to practise their religion and follow their beliefs,”[16] including attending services and religious meetings, possessing literature relating to religion or beliefs and receiving visits from representatives of the religion or beliefs. The inability of a prisoner to participate in religious services constitutes an interference with his rights under Art. 9.[17] Restrictions to this right may be justified if it is a proportionate response to the necessity to protect the rights and freedoms, health and moral of others according to Art. 9 § 2. Similarly, prisoners must be able to exercise their right to freedom of expression including the freedom to hold opinions and to receive and impart information and ideas without interference by public authority under Article 10. Any restrictions on this right must be justified according to Article 10 § 2. In Kalda v. Estonia, the Court ruled that Article 10 does not in itself constitute an obligation to allow prisoners access to Internet or certain websites.[18] However, access to certain websites containing legal information is granted under national law and the restriction of access to other websites which also contain legal information constitutes an interference with the right to information.[19]

Deprivation of liberty does not coincide with a deprivation of physical and mental well-being. Under Art. 2 ECHR, states have a positive obligation to protect the lives of persons under their jurisdiction, including those deprived of their liberty. This implies an obligation to provide prisoners with the “medical care necessary to safeguard their life.”[20]Failure to do so may otherwise constitute “treatment in breach of the Convention.”[21] Indeed, “the very essence of the Convention system of protection of human rights is based on respect for human dignity which also extends to the treatment of prisoners.”[22] The state must ensure that the conditions in which prisoners or detainees are held are “compatible with respect for human dignity”[23] and that the well-being and health of those individuals are protected. In Bouyid v. Belgium, the Court reiterated that “there is a particularly strong link between the concepts of ‘degrading’ treatment or punishment within the meaning of Article 3 of the Convention and respect for ‘dignity.’”[24] The protection against inhuman and degrading treatment prohibited by Article 3 is absolute.[25] Noting that there is an “unavoidable level of suffering inherent in detention,”[26] the Court has stressed any suffering or humiliation experienced by the prisoner or detainee must “go beyond that inevitable element of suffering and humiliation connected with detention” [27]to fall within the scope of Article 3. The treatment or experiences of the prisoner must go hand in hand with a lack of respect for the individual’s dignity, weaken that dignity or trigger fear or “anguish or inferiority capable of breaking an individual’s moral and physical resistance.”[28] The Court has never provided a definition of what this inherent suffering or humiliation entails,[29] but, as Snacken argues, by recognizing an ‘unavoidable level of suffering’ and ‘inherent element of humiliation,’ the Court applies a “relatively high threshold.”[30] The Court has held that various elements are crucial in deciding whether the detention conditions are in line with Article 3, namely the duration of detention, the possibilities for outdoor exercise, access to hygienic sanitary facilities and the physical and mental condition of the detainee.[31] The Committee for the Protection of Torture and Inhuman or Degrading Treatment or Punishment (‘CPT’) is crucial in determining and examining the detention conditions of prisoners.[32]

Article 8 protects the autonomy of an individual, which includes the private and family life as well as home and correspondence. The aspect of private life has been extended to include the moral and physical integrity of the person, and may therefore coincide with Article 3, particularly in the case of individuals deprived of their liberty.[33] The aspect of private life is broadly defined and there are therefore many situations in prisons which fall under Article 8 seeing as they do not “attain the level of severity required by Article 3.”[34] Protection of personal data, which includes medical data, is an integral part of the respect for private and family life under Art. 8, as suggests the Court’s case-law.[35] Privacy is guaranteed under Art 8 and it is crucial that prisoners have access to proper sanitary facilities in order to at least ensure “a minimum of privacy for the inmates.”[36] For example, the Court has ruled that an individual’s right to privacy is a “serious interference”[37] when placed under permanent video surveillance whilst in detention and an interference also arises with an individual’s right to respect for his private life when he is obliged to wear prison clothes during visits to clinics outside prison.[38] Correspondence is the “primary means”[39] through which those deprived of their liberty can communicate. Lying between “public safety and individual fundamental rights,”[40] the Court recognizes that a certain amount of control of the correspondence of prisoners is necessary and therefore not all interferences constitute a violation of Art. 8. However, the Court reiterates that “the status of a person cannot justify a complete forfeiture of fundamental rights, and a proper balance has to be struck between competing interests.”[41] High priority is granted to correspondence with lawyers or medical specialists to ensure the prisoner’s right to defense and health.[42] In order to guarantee the individual’s enjoyment of his family life, it is “essential”[43] that the authorities aid the prisoners in being able to maintain contact with their close family and receive visits from family. Resocialization is one of the objectives of imprisonment, and maintaining contact with the outside world, particularly with family, is crucial to achieving this objective.

It goes without saying that the conditions and mere status of imprisonment inevitably mean that certain rights will be affected. However, the ECHR has established that deprivation of liberty does not mean the deprivation of all fundamental human rights. Although the authorities must guarantee and protect the fundamental rights for those deprived of liberty, Art. 3 and Art. 8 must be particularly safeguarded. If the rights and provisions enshrined in Art. 3 and Art. 8 are not protected, it is certain that rehabilitation cannot occur. To infringe upon these rights, to subject a prisoner to any form of inhuman or degrading treatment or infringe on his privacy or private and family life, would be an affront to his dignity and his basic habilitative needs. Unless states and authorities ensure that prisoners are able to exercise their basic human rights and basic habilitative needs, the objective of imprisonment will not be achieved. Only if these rights under the ECHR are secured and protected can rehabilitation and resocialization occur.

[1] Battle v. Anderson, 447 F. Supp. 525. [2] Vinter and Others v. the United Kingdom [GC], 2013, §§113-115; Murray v. the Netherlands [GC], 2016, §§ 101-104. [3] Battle v. Anderson, 447 F. Supp. 525. [4] Ibidem. [5] Salduz v. Turkey [GC], 2008, §§ 53-54; Ibrahim and Others v. the United Kingdom [GC], 2016, § 255. [6] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5. [7] Chaykovskiy v. Ukraine, 2009, § 85. [8] Hirst v. the United Kingdom (no. 2) [GC], 2005, § 70. [9] Ibid., § 59. [10] Ibidem. [11] Council of Europe: European Court of Human Rights, “Guide on the case-law of the European Convention on Human Rights. Prisoners’ rights,” April 30, 2020, pg. 68. [12] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5. [13] Ibidem. [14] Stummer v Austria [GC], 2011, § 93. [15] Council of Europe: Committee of Ministers, “Recommendation Rec(2006)2 of the Committee of Ministers to Member States on the European Prison Rules,” January 11, 2006, § 26.1. [16] Ibid., § 29.2. [17] Poltoratskiy v. Ukraine, 2003, §§ 166-167; Council of Europe: European Court of Human Rights, “Guide,” pg. 61. [18] Kalda v. Estonia, 2016, § 43-45. [19] Ibidem. [20] Jasinskis v. Latvia, 2010, § 60. [21] Ibidem. [22] Council of Europe: European Court of Human Rights, “Guide,” pg. 8. [23] Kudła v. Poland [GC], 2000, §§ 92-94; Idalov v. Russia [GC], 2012, § 93; Muršić v. Croatia [GC], 2016, § 99. [24] Bouyid v. Belgium [GC], 2015, § 90. [25] Ibid., 76. [26] Council of Europe: European Court of Human Rights, “Guide,” pg. 8. [27] Ibidem. [28] Ibidem. [29] Sonja Snacken, “Human Dignity and/or Human Rights for Prisoners? A Belgian Example,” Kriminalpolitik 27, no. 2 (2015), 184. [30] Ibidem. [31] See Muršić v. Croatia [GC], 2016, § 103. [32] The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) is responsible for visiting places where individuals are deprived of their liberty within the jurisdiction of the member states party to the Convention. The Committee prepares a report on its findings which may include recommendations and other advice to enter into a dialogue with the state. See Office of the United Nations High Commissioner for Human Rights, “Human Rights and Prisons,” Manual on Human Rights Training for Prison Officials, 2005, 24-25. [33] Ivana Roagna, “Protecting the right to respect to respect for private and family life under the European Convention on Human Rights,” Council of Europe human rights handbooks, 2012, pg. 24. [34] Ibidem. [35] Council of Europe: European Court of Human Rights, “Guide,” pg. 11. [36] Szafrański v. Poland, 2015, §38. [37] Council of Europe: European Court of Human Rights, “Guide,” pg. 18. [38] Ibid., pg. 15. [39] Roagna, “Protecting the right,” 38-39. [40] Ibidem. [41] Ibid., 6. [42] Ibid., 47. [43] Vintman v. Ukraine, 2014, § 78.