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The state and federal laws rule the administration as well as the establishment of prisons and the prisoners’ rights. Even though inmates don’t have complete Constitutional rights, it is noted that they are protected by the prohibition of the Constitution of unusual and cruel punishment1. This protection needs that the inmates to be afforded least standard of living. The inmates retain a number other Constitutional rights, such as due process in their right to administrative petitions as well as the right of access to the process of parole. The prisoners are thus protected against imbalanced treatment regarding the basis of sex, race, and creed. In additional, the Corrections and Sentencing Act Model provides that a confined individual has a secured interest in freedom from discrimination on the basis of religion, race, sex, or national origin2. It is also noted that the prisoners also have restricted rights to religion and speech. Studies have indicated that the state prisoners have no rights to specific classifications under state law. It is noted that the courts are tremendously reluctant to restrict the discretion of officials of the state prison to classify prisoners3. This paper critically evaluate the statement that the approach taken by the European court of human rights towards the protection of the human rights of prisoners is preferable to that of the Irish courts both in terms of principle applied and the substantive results produced.
The Approach taken by the European Court of Human Rights towards the protection of the Human Rights of prisoners is preferable to that of the Irish Courts both in terms of Principle applied and the Substantive results Produced
Studies have indicated that the Court has a broad case-law on the prisoners’ human rights. It has believed that inmates generally continue to enjoy all the basic freedoms and rights pledged under the Convention save for the right to liberty4. It is noted that in response to the applications that have been lodged before it, and in relation to its principle of providing priority to complaints that increase claims of the most serious breaches of human rights, there is now an enormous body of case-law targeted at protecting inmates from severe ill-treatment in prison. It is noted that in this context, the Court has taken into consideration the issues including detention conditions, such as the over-crowding as well as lack of access to fundamental facilities of hygiene, medical treatment as well as adequate food5. It is vital to note that this is one area whereby the European Convention Court system has made an important difference between its approach towards the protection of the rights of prisoners and that of the Irish court (Ma, 2000).
The European Court of Human Rights has highlighted in numerous judgments that, whilst punishment remains among the aims of imprisonment, the stress in European penal principle is now on the rehabilitation objective of imprisonment, especially towards the end of a long prison sentence (Ma, 2000). It is noted that this principle found expression in the current case of Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, ECHR 2013 (extracts), regarding whole-life sentences in the UK. The Court described that, in order for a life sentence to remain well-matched with the exclusion on inhuman punishment under Article 3 ECHR, there should be both a possibility of review and a prospect of release. A prospect of release is important since the human dignity needs that there should be an opportunity for a prisoner to apologize for his offence and move towards reintegration. It is vital to note that the review system is further required because, over the course of a very long sentence, the balance amid the grounds of detention (deterrence, punishment, public protection as well as rehabilitation) might shift to the point that detention may no longer be justified6. On the other hand, the Irish Court is so far in Ireland seems to support a diverse perception of the responsibility of imprisonment, with the Irish Courts presiding that the rights of prisoners are essentially diminished through their imprisonment’s virtue. It is noted that judgments in two leading Irish cases in this regard – the one of State (McDonagh) v Frawley and Gilligan v Governor of Portlaoise Prison– articulated the view of the Courts that the rights of prisoners are suspended at the time of the period of their imprisonment, and also emphasize that whilst the person is held as a prisoner pursuant to a lawful warrant, a lot of the normal constitutional rights of the applicant are suspended or abrogated. According to my perception, such an approach taken by the Irish court stands in contrast to the principles articulated in the case-law of the European Court of Human Rights and in the European Prison Rules7.
Studies have indicated that unspecified detention for the protection of the public could be justified under the right to liberty in the Convention’s Article 5 § 1, but that it could not be permitted to open doors to arbitrary detention. It is noted that where an inmate was in detention exclusively because of risk that he was supposed to pose, regard had to be had to the requirement of encouraging his rehabilitation. In the cases of the applicants this meant that they had to be provided with reasonable chances to do courses that were aimed at looking at their offending behavior as well as the risks they posed8. It is further noted that the experience had demonstrated that courses were important for dangerous inmates to stop from being dangerous. Whilst the Article 5 § 1 didn’t enforce any complete requirement for inmates to have instant access to all the courses they may need, any delays or restrictions because of the resource considerations had to stay reasonable9. It was thus important that the State Secretary had failed to antedate the demands that would be placed on the system of prison by the institution of IPP sentencing, in spite of the relevant laws having been premised on the understanding that the treatment of rehabilitation would be made available to IPP inmates. In fact, this failure had been the topic of general criticism in the Irish court and led to a finding that the State’s Secretary had breached his public duty law10. On the other hand, in reality, the detention conditions which might breach the human rights of prisoners might be found in detention places much closer to everyday life, such as within the Irish prisons. In the context of Irish courts, it is vital to note that the CPT has constantly doomed the slopping-out in the prisons of Irish as humiliating and degrading, and in the report of 2006 said that regimes in all prisons of Irish with the exclusion of Wheatfield were scarce in this regard11.
The authorities of the State have a duty to protect the right to life of everybody in their territory, a duty stemming from ECHR’s Article 2 (the right to life). Studies have indicated that in its practice, the European Court of Human Rights has interpreted the Article 2’s provisions as having three different components: the negative duty on the State to stop from causing illegal deaths; the positive duty to take preventive action in regard to preventable deaths, as well as a positive duty to properly investigate deaths indirectly or directly caused by the State officials’ negligence actions12. In the imprisonment context, authorities of prison should be aware of the Article 2’s implications for application of force in prisons. The European Court of Human Rights has highlighted that the ECHR’s relevant provisions covers not only contexts where killing by the officials of the State is intentional, but also contexts where it is allowed to ‘apply force’ that might result, as an unintentional outcome, in the deficiency of life. This is apparently of relevance to the prison officers’ actions that are authorized to apply force in specific situations, especially to deal with violent prisoners or to restore order13. It is noted that the Article 2 of the European Court of Human Rights needs the authorities of the states to take steps in protecting the lives of those that they ought to have known or they know are at risk. Studies have indicated that deaths within the custody have been studied from this viewpoint on a number of cases by the ECtHR, both in the setting of imprisonment as well as in the setting of police custody, and the Court highlighted that this positive duty is breached in situations whereby the authorities of the states fail to take rational measures in the scope of their powers to avoid death14. It is noted that the duty to take steps to safeguard life extends to the avoidance of suicide within the custody. Therefore, the European Court of Human Rights has emphasized on the protection of the prisoners’ lives in the custody. It has also emphasized that where the detained individuals are concerned, the positive obligation is given to the State to take ‘general precautions and measures to reduce the chances for self-harm by the prisoners. This approach by the European Court of Human Rights is preferable to that of Irish courts. This is evidenced whereby a lot of violent deaths have happened in the Irish prisons in current years, such as that of Gary who was strangled and beaten to death by the prisoner who was mentally-ill whilst under ‘protection’ in a holding cell15.
The European Court of Human Rights has further emphasized that if deaths happen in the prisons, it is the duty of the authorities of prison to undertake an immediate and independent investigation regarding the circumstances that caused such death16. Those investigation has to be: carried out on the own initiative of the State; independent both in practice and institutionally; quick; able to lead to a determination of accountability as well as the punishment of those responsible; transparent to make sure that responsibility; and engage the next-of-kin in its proceedings. It is further emphasized by the European Court of Human Rights that when an individual dies in the State’s care, such as deaths in prison care, the proof’s burden is regarded as resting determinedly on the authorities to give a convincing and satisfactory explanation as to why and how the death happened17.
The European Court of Human Rights has emphasized that the authorities of the prison have a positive duty under Article 8 to protect the physical integrity of the prisoners. It is noted that the issue of providing adequate facilities of healthcare to inmates is dominant to the international standards18. There is consideration of a number of cases by the European Court of Human Rights brought by inmates where it indicated that inadequate or poor care breached the ECHR’s provisions, especially Article 8 and Article 3 i.e. the right to private as well as family life. For instance, the European Court of Human Rights has stated that the authorities of the prison have a positive duty under Article 8 to protect the physical integrity of the prisoners19. The positive obligation of the State to protect the detainees’ well-being takes on even higher significance when an inmate is more vulnerable because of severe health concerns including physical disability, or actual drug use. In the obligations context towards using of drug by the prisoners, amid them a duty to offer treatment for extraction symptoms, it is vital to note that the report of CPT on the visit to Ireland court in 2010 indicated the prevalent nature of the problems of drug in prisons of Irish. It further identified the issues related to drug as intensifying the inter-prisoner violence levels. The significance of access to preventive measures was identified in the report, and the CPT motivated the authorities of Irish to undertake measures reducing harm so as to reduce the spread of blood-borne viruses amid inmates20.
The European Court of Human Rights has indicated that the authorities have an obligation of providing proper medical care, especially in the setting of the need to efficiently monitor the mental health of an inmate held in custody confinement21. Failure to give medical assistance on time when required might also violate the human rights of the prisoners. Such violation was arbitrated to have taken place in the case whereby an inmate had not seen a doctor for more than 18 months, even after engaging in a strike of hunger, in a case whereby a gap in observing the condition of an inmate over the weekend resulted in a decrease in her health, and afterward her death. The European Court of Human Rights further highlighted that the right to timely medical care in cases whereby an inmate has a severe medical condition must include consistent access to specialized diagnostic care22.
Studies have indicated that according to the human rights provisions’ interpretation of the European Court of Human Rights, the states have an obligation to avoid the infectious diseases’ spread in prisons23. In current years, the states have been held accountable for gaps of human rights in cases whereby the states didn’t take the necessary steps to prevent the tuberculosis’ spread. The European Court of Human Rights has further highlighted that the fact that an inmate contracted a disease while in prison might be regarded as evidence that the whole prison system is degrading or inhuman24.
In regard to the protection of the family life of the prisoners (under the ECHR’s Article 8), the ECtHR took into consideration a lot of cases founding the standards under the European Court of Human Rights. Most significantly in the situation of imprisonment the European Court of Human Rights highlighted that the authorities of the State have a duty of assisting serving inmates in upholding contact with their families25. Such duty might, in a number of circumstances, outspread to transferring an inmate to another prison. The obligation on the State in this respect might be wider if the inmate wishes to uphold contact with her or her children, whilst in the contact with a spouse case; it might be likely that they will go more certainly to visit the prisoner even if a definite distance is involved26. The European Court of Human Rights has recognized the significance of the relationships of prisoners with others and that it needs a level of association for prisoners. It is vital to note that in the court’s consideration of the level of the protection of prisoners’ family life, the Court has indicated that the refusal to facilitate an evaluation for the purposes of artificial insemination by an inmate of the life of his partner living outside the prison violated the human rights standards under the European Court of Human Rights27.
Studies have indicated that Article 8 of the European Court of Human Rights further protects the right of the prisoner to private life as well as the freedom of correspondence, and also the ECtHR has built up a lot of standards in this area28. First of all, the European Court of Human Rights highlights that any communication between the legal representative and the prisoner is privileged and must not be read by the authorities of prison. Whilst agreeing that the opening of letters of prisoners might be justified on the basis of essential checks for illegal materials, the content’s reading is not, and letters must be opened in the prisoner’s presence to make sure that his/her privacy is not breached29.
The Article 5 of the European Court of Human Rights protects the right of any individual not to be disadvantaged of their freedom in an arbitrary manner. The Convention apparently permits for detention in some particular situations, such as detention and arrest with a perception to bringing an individual to trial for an alleged offence30. It is noted that the ECtHR has taken into consideration a lot of cases regarding the detention’s length on custody and it is apparent from the reports made by the Court that Article 5 defends the right of any individual underprivileged of their freedom to be put on trial within rational time or be unconfined pending trial. Furthermore, the State practice must be in assumption of release on bail, for instance, an individual charged with an offence should always be set free on bail pending trial unless the State might show that there are “sufficient and relevant” reasons for ongoing pre-trial detention.31.
The Article 6 of the European Court of Human Rights defends the right to fair trial of the prisoners and the ECtHR in its practice has indicated that definite disciplinary proceedings against inmates fall under the definition of ‘criminal charges’ and also the legal representation must thus be given to inmates in such situations32. It is noted that this is of relevance to corrective proceedings ruled in Ireland by the Prison Rules 2007’s provisions (sections 66-69) that don’t make provision for lawful representation in proceedings introduced by a governor prison. Whilst the provision is made under the Prisons Act 2007 of section 15 for the appeal of the decision of governor to the Appeal Tribunal at which the inmate might be lawfully represented (and might be offered with legal aid), there has been doubts expressed whether this procedure complies with the fair trial33.
The Irish Court of Human Rights has emphasized that the constitutional rights of the prisoners might be restricted. It emphasize that the right to freedom of expression of prisoners is limited. On the other hand, the European Court of Human Rights offers prisoners the right of expression34. The case State of (McDonagh) v Frawley (1978) demonstrated that a number of constitutional rights might be suspended. A case in Wheatfield Prison by Connolly v Governor of (2013) confirmed that some of the constitutional rights on humane and dignity treatment might be “violated and compromised”: Based on the above Irish Courts’ judgment it might be observed that the constitutional rights are not complete and might be suspended by courts in relative and reasonable situations35.
In conclusion, it is clearly seen that the approach taken by the European Court of Human Rights towards the protection of the human rights of prisoners is preferable to that of the Irish courts both in terms of principle applied and the substantive results produced. This is evidenced whereby it is seen that the unspecified detention for the protection of the public could be justified under the right to liberty in the Convention’s Article 5 § 1, but that it could not be permitted to open doors to arbitrary detention. The authorities of the State have a duty to protect the right to life of everybody in their territory, a duty stemming from ECHR’s Article 2 (the right to life). It is also noted that the European Court of Human Rights has further emphasized that if deaths happen in the prisons, it is the duty of the authorities of prison to undertake an immediate and independent investigation regarding the circumstances that caused such death. The European Court of Human Rights has emphasized that the authorities of the prison have a positive duty under Article 8 to protect the physical integrity of the prisoners.
Besson S, ‘The European Union And Human Rights: Towards A Post-National Human Rights Institution?’ (2006) 6 Human Rights Law Review
Brems E and Lavrysen L, ‘Procedural Justice In Human Rights Adjudication: The European Court Of Human Rights’ (2013) 35 Human Rights Quarterly
Ciuca A, ‘Human Rights: Between The European Court Of Human Rights And The Court Of Justice Of The European Communities’ SSRN Electronic Journal
Céré J, ‘The European Court Of Human Rights And The Protection Of Prisoners’ Rights’ (2016) 4 International Journal on Criminology
Lines V, ‘The Right To Health In International Human Rights Law’ (2008) 1 Health and Human Rights
Ma Y, ‘The European Court Of Human Rights And The Protection Of The Rights Of Prisoners And Criminal Defendants Under The European Convention On Human Rights’ (2000) 10 International Criminal Justice Review
WitzanyP (2016) <http://www.iprt.ie/files/IPRT_Position_Paper_4_-_Human_Rights_in_Prison.pdf> accessed 13 December 2016
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