ABSTRACT

The European Court of Human Rights has held that prisoners in general continue to enjoy all the
fundamental rights and freedoms guaranteed under the Convention save for the right to liberty. For example,
in addition to being protected from ill-treatment, prisoners continue to enjoy the right to respect for family
life, the right to freedom of expression, the right to practise their religion, the right of effective access to a
lawyer or to court for the purposes of Article 6, the right to respect for correspondence and the right to
marry. Any restrictions on these rights require to be justified (although such justification is frequently to be
found in considerations of security). The Court is developing case-law in this field which emphasises that
the protection of prisoners’ fundamental rights, particularly those which tend to maintain or create links for
the prisoner with the outside world, can be seen as assisting the prospects for prisoners to reintegrate into
society following release.
KEYWORDS,
Introduction
The Court has an extensive case-law regarding the human rights of prisoners. It has held that prisoners in
general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for
the right to liberty. In response to the applications which have been lodged before it, and in accordance with
its policy of giving priority to complaints which raise allegations of the most serious breaches of human
rights, there is now a vast body of case-law aimed at protecting prisoners from serious ill-treatment in
prison. In this context, the Court has considered issues such as conditions of detention, including over-
crowding and lack of access to basic hygiene facilities, medical treatment and adequate food. I think that it is
fair to say that this is one area where the European Convention system has made a significant difference
across Europe, with improvements being made to prison conditions in a number of States, for example
Russia, Italy and Poland.
Content with case laws:
There is a considerable amount of “soft law” on this topic, in particular, the European Prison Rules 2006.
The Prison Rules are recommendations of the Committee of Ministers to member States of the Council of
Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided by the
Rules in their legislation and policies and to ensure wide dissemination of the Rules to their judicial
authorities and to prison staff and inmates. Various provisions of the European Prison Rules have been
influenced by judgments of the Court, and in turn the Court frequently refers to the Rules as evidence of
support amongst the Member States of the Council of Europe for a particular policy stance.
An example of this is Rule 6 of the European Prison Rules, one of the “basic principles” that underlie the
Rules as a whole. It states: 6. All detention shall be managed so as to facilitate the reintegration into free
society of persons who have been deprived of their liberty. In addition, Rule 102.1, headed “Objective of the
regime for sentenced prisoners”, provides: 102.
In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to
enable them to lead a responsible and crime-free life. The European Court of Human Rights, also, has stated
in various judgments that, while punishment remains one of the aims of imprisonment, the emphasis in
European penal policy is now on the rehabilitative aim of imprisonment, particularly towards the end of a
long prison sentence.
This principle found expression in the recent case of Vinter and Others v. the United Kingdom ,about whole-
life sentences in the United Kingdom. The Court explained that, in order for a life sentence to remain
compatible with the prohibition on inhuman punishment under Article 3 ECHR, there must be both a
prospect of release and a possibility of review. A prospect of release is necessary, because human dignity
requires that there must be a chance for a prisoner to atone for his offence and move towards rehabilitation.
A review system is also needed because, over the course of a very long sentence, the balance between the
grounds of detention (punishment, deterrence, public protection and rehabilitation) can shift to the point that
detention can no longer be justified.
In a case against Italy, Mastromatteo v. Italy, the applicant’s son was murdered by two prisoners who had
been granted prison leave and had taken advantage of it to abscond. The Court observed that: “One of the
essential functions of a prison sentence is to protect society, for example by preventing a criminal from re-
offending and thus causing further harm. At the same time the Court recognises the legitimate aim of a
policy of progressive social reintegration of persons sentenced to imprisonment. From that perspective it
acknowledges the merit of measures – such as temporary release – permitting the social reintegration of
prisoners even where they have been convicted of violent crimes.” It held that the safeguards built into the
Italian system, for example the need for the prisoner to have a substantial record of cooperation and good
behaviour, and the system of risk assessment by a judge in consultation with the prison authorities, provided
sufficient protection for society. There was, therefore, nothing to suggest that the system of reintegration
measures applicable in Italy at the material time was in itself in breach of the obligation to protect life under
Article 2 ECHR. Nor was there anything in the material before the national authorities to alert them to the
fact that the release of the two prisoners would pose a real and immediate threat to life, still less that it would
lead to the tragic death of the applicant’s son as a result of a chance sequence of events. Successful
rehabilitation can sometimes depend on the extent to which a prisoner is able to maintain ties to the outside
world, so that when he is released he does not find himself isolated and excluded from mainstream society.
The question has arisen whether there is a right under Article 8 ECHR (the right to family life) for prisoners
to maintain contact with their families through family and conjugal visits. At the present time, the position is
not entirely clear. In Aliev v. Ukraine the Court found a statutory ban on long-term visits (which would
allow conjugal visits to persons convicted to death) to be compatible with Article 8. Moreover, it recently
confirmed that the Convention does not require the Contracting States to make provision for long-term or
conjugal visits (see Epners-Gefners v. Latvia) On the other hand, in a recent judgment the Court has found a
violation of Article 8 in very similar context (see Trosin v. Ukraine, no. 39758/05, 23 February 2012). It
held that the restrictions for family visits were disproportionate as not involving the assessment of their
necessity in the light of particular circumstances of each prisoner. The issue should be resolved by a case
which has recently been referred to the Grand Chamber of the Court, Khoroshenko v. Russia The case is a
challenge to provisions of the Russian Penitentiary Code, which state that life-sentenced prisoners are
excluded from long-term family visits during the first ten years of imprisonment. During this period they are
entitled to one short-term visit (four hours) every six months in conditions excluding any privacy (glass
partition, presence of guards). The hearing before the Grand Chamber is scheduled for 3 September 2014.
The possibility for prisoners to learn new skills to assist them with working life on the outside can also have
an impact on reintegration.
In a case from May of this year, Velyo Velev v. Bulgaria, , the Court considered the question whether there
was a right for a prisoner detained on remand to attend a prison school. In earlier cases the Court had held
that the right to education under Article 2 of Protocol No. 1 did not place an obligation on State authorities
to take action to enable a person to pursue an education while in prison. In Velyo Velev’s case, however,
there was a pre-existing school in the prison. The Court found that the Government had provided neither
practical reasons, for example based on lack of resources at the school, nor a clear explanation as to the legal
grounds for excluding the applicant. It can be hard for an offender to access work when he or she has a
criminal record which can be disclosed to prospective employers. In MM v. the United Kingdom, the Court
found that there had been a violation of Article 8 of the Convention (right to respect for private life) aring
out of arrangements for the indefinite retention of data relating to a person’s caution in a criminal matter and
for the disclosure of such data in criminal record checks. The applicant had disappeared with her grandson
for three days because of fears that the child’s parents would move with him to Australia. She was arrested
for child abduction and subsequently agreed to be cautioned for this offence by the police. She was informed
by the police that the caution would remain on-record for five years. However, some six years later when
she was offered a job as a family support worker, the existence of the caution was confirmed by the Criminal
Records Office and the offer of employment was withdrawn. Although the Court recognised that there might
be a need for a comprehensive record of data relating to criminal matters, the indiscriminate and open-ended
collection of criminal record data was unlikely to comply with Article 8 in the absence of clear and detailed
statutory regulations clarifying the safeguards applicable and governing the use and disposal of such data,
particularly bearing in mind the amount and sensitivity of the data.
Critical analyisis
The main focus of the Court’s judgments on prisoners has been to ensure that prisoners are not placed in
health-threateningly bad conditions, enjoy access to medical care and are protected from other forms of
serious ill-treatment. However, the Court is also, increasingly, focussing on the need to ensure that the
rehabilitative aim of sentencing is met. The case-law shows that the Court does not want to place too great a
burden on national authorities, since it is aware that resources are tight and that there may sometimes be a
tension between rehabilitation and the other purposes of imprisonment, notably protection of the public and
punishment. However, where restrictions on prisoners’ possibilities to prepare for release appear arbitrary or
unreasonable, the Court will find violations of the relevant Convention rights.
life imprisonment can infringe on human dignity in different ways. Even though a life sentence in and of
itself is not in violation of human rights, on some occasions they may be so out of proportion to the
circumstances at hand that they amount to inhuman and degrading treatment. Additionally, the right to
rehabilitation indicates that life sentences, in which an offender is sentenced to spend the remainder of his
life behind bars, is not compatible with the right to human dignity.
As has been established, requirements related to prospects of release and possibility of review must exist
from the imposition of a life sentence. Criteria conditions and assessment must be based on rules having
sufficient degree of clarity and certainty and these rules must reflect the relevant case law of the ECtHR, i.e.
they must meet standards laid down by the ECtHR. Certainty in this area is not there only because it is a
requirement of the rule of law but because it underpins the process of rehabilitation which risks being
impeded if the procedure of sentence review and prospects of release are unclear or uncertain. Possibilities
for resocialization and realistic prospects of release are compelling factors in the current evolution of life
imprisonment worldwide, and these rights should surely shape how we think about the future of life
imprisonment. It is a leap to assume that recognition of these rights will inevitably result in the abolition of
all life imprisonment.93 It does, however, indicate that life sentences without the possibility of parole and a
realistic prospect of release, may be fully abolished from European jurisdictions in the future. As mentioned,
life imprisonment replaced the death penalty in European law, for the death penalty was deemed in violation
of the right to life. States thus resorted to life sentences as the “lesser” of two severe punishments for their
most heinous criminals. The indeterminate nature of life and long-term sentences that offer no hope of
release irreparably deprive prisoners of any and all aspirations for betterment, seemingly tantamount to the
death penalty.94 Ultimately, a denial of human dignity follows as a consequence of such sentences. It may
strike as odd to continue imposing life sentences, since developments suggest a progressive rise in the
recognition of the right to hope and rehabilitation, in which it is acknowledged that prisoners do not
necessarily have to spend all their lives in prison. Likewise, releasing a prisoner who has received a life
sentence may seem inconsistent with what the name of the sentence is thought to convey. Rethinking life
imprisonment is not an easy task and requires trust in the public, trust in experts and a lot of education. In
thinking about reform it is also important to recognise that this punishment carries significant symbolic
meaning to many. Such symbolic value does not disappear with ease. In any event, I believe life
imprisonment can be replaced with fixed or determinate sentences, supplemented by appropriate
mechanisms in the cases of particularly dangerous offenders.
CONCLUSION
As I mentioned at the beginning, the main focus of the Court’s judgments on prisoners has been to ensure
that prisoners are not placed in health-threateningly bad conditions, enjoy access to medical care and are
protected from other forms of serious ill-treatment. However, the Court is also, increasingly, focussing on
the need to ensure that the rehabilitative aim of sentencing is met. The case-law shows that the Court does
not want to place too great a burden on national authorities, since it is aware that resources are tight and that
there may sometimes be a tension between rehabilitation and the other purposes of imprisonment, notably
protection of the public and punishment. However, where restrictions on prisoners’ possibilities to prepare
for release appear arbitrary or unreasonable, the Court will find violations of the relevant Convention rights.
One does not need to look far to find jurisdictions in which that has been successful or where debates on that
matter are ongoing., I trust that the jurisprudence of the ECtHR will continue to contribute to the
development of human rights standards that are clear and forcible enough to prevent the abuse of the
extraordinary power that any state exercises of persons serving life sentences.