Academic journal article Denver Journal of International Law and Policy

A Comparative Approach to Prisoners' Rights in the European Court of Human Rights and Inter-American Court of Human Rights Jurisprudence

Academic journal article Denver Journal of International Law and Policy

A Comparative Approach to Prisoners' Rights in the European Court of Human Rights and Inter-American Court of Human Rights Jurisprudence

Article excerpt

I. INTRODUCTION

In its landmark decision of 1984 on the Campbell and Fell case (1), the European Court of Human Rights ("ECtHR") correctly observed that: "justice cannot stop at the prison gate." (2)

This statement perfectly captured the rationale for a human rights approach to prison management. It also vividly expresses the auspices of all the actors involved in ensuring respect for human rights in prisons and similar institutions: public authorities, civil society organizations, and prominently, judicial and quasi-judicial human rights bodies. The ECtHR's remark also helps to understand why legal scholars from all countries have produced detailed commentaries and critical examinations of the rules of international law, including the numerous non-binding international standards, guidelines, and provisions applying directly to the prison sector or intended to provide protection in cases where the detainees' rights are at risk. (3) The international community clearly feels the need to identify international standards on the protection of the fundamental rights of detainees. (4)

This need stems firstly from the fact that a number of monitoring bodies--including the ECtHR and the Inter-American Court of Human Rights ("ACtHR"), (5) but not the United Nations human rights bodies (6)--have usually been partially or sometimes even totally unaware of their practical significance for the detainee population and have therefore not exercised their functions with full effectiveness. Secondly, and more significantly, the identification and subsequent application of those standards, including the results of the Council of Europe's standard-setting work in the area of the protection of detainees' fundamental rights, (7) have significant consequences for the treatment of detainees inside prisons. Such standards (as a whole) can help courts and quasi-jurisdictional bodies operating at both national and supranational levels to ensure effective respect of human rights and fundamental freedoms for detainees. Although the United Nations Standard Minimum Rules for the Treatment of Prisoners ("SMR"), (8) the European Prison Rules ("EPR"), (9) the Principles and Best Practices on the Protection of Persons Deprived of Their Liberty in the Americas, (10) the United Nations Draft Charter on the Fundamental Rights of Prisoners adopted by the United Nations Commission on Crime Prevention and Criminal Justice in 2003, (11) and other similar documents only have the force of policy guidelines; (12) they are largely incorporated in the relevant detention provisions of various international human rights treaties, including the International Covenant on Civil and Political Rights ("ICCPR"), (13) the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"), (14) the European Convention on Human Rights ("ECHR"), (15) and the American Convention on Human Rights ("ACHR"). (16) Finally, if consistently applied by national and supra-national courts, these standards, guidelines, and principles may greatly contribute to building a body of consistent case law on detainees' rights under the international human rights conventions including the International Covenant on Economic, Social and Cultural Rights ("ICESCR"), (17) though there is no specific reference to detention made in the ICESCR. The main reason for their potential contribution is the fact that these soft law instruments (unlike international human rights treaties which lack specific rules addressed to detainees and prisoners as a vulnerable group) (18) embrace a considerable set of issues related to detention conditions--accommodation (for instance, overcrowding, hygiene, sanitary facilities, food, and clothing), discipline and punishment, legal counsel, and free communication in general, health and medical services, work, and recreation. (19) While perhaps not essential, building such a body of 'jurisprudence constants would certainly be useful, since several states are parties simultaneously to the ICCPR, the CAT, the ECHR, and the ACHR. …

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