The Sustainability of Human Rights Law in Prisons
It has long been established that the right to life is not restricted to the mere animal existence as advanced by Justice Field in Munn v People of Illinois [1876] SCOTUS 94. This dictum extends to those in incarcerated in correctional facilities. It arguably forms the foundation of the set of minimum rights guaranteed for the prisoners in doctrines such as the Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations General Assembly in resolution 45/111 of 1990. Notably, the prevailing human rights law has achieved commendable success on alleviating the conditions of those in detention, despite civil defiance as evidenced in the hostility towards voting rights for the prisoners in England. This civil defiance, informed by vengeance punishment towards inmates for their violation of the social norms, and has led to claims that the demands by the human rights law are sometimes excessive, and bend towards unsustainability (Mavranicola, 2015). However, it is arguable that the demands of the human rights law, however extreme they might be perceived, do not risk becoming unsustainable in light of European Convention on Human Rights Article 2, 3 and Article 3 of Protocol 1.
Sustainability and sustainable development have evidently become hegemonic frames informing the methods in which governments and international organizations conceptualize eco-political issues and devise policy agendas (Bluhdorn, 2016). For the purpose of this discussion, this paper adopts the simplistic definition of sustainability, which implies the extent of longevity in which a particular course of action can be pursued viably. It is in light of this conceptualization of sustainability that advances the argument that the clamours of human rights law, as evidenced by various provisions of the ECHR, do not risk becoming unstainable in prison contexts. The nature of these provisions, arguably, are not entirely absolute and have clearly outlined grounds for limitations (Rodley & Pollard, 2009). In fact, the contemporary achievements enjoyed today in prisons are often a bare minimum implementation of the theoretical context of such rights. As such, arguments that the demands of human rights law risk becoming unsustainable are mere excuses for governments and other state actors to evade responsibility and accountability by maintaining the perpetration of the infringement of rights and freedoms of those in detention.
The demands for the protection of the right to life by the Council of Europe states as per Article 2 of ECHR evidently constitute a formidable indicator that they do not risk becoming unsustainable in prisons. Notably, Article 2, in the protection of the right to life of all human beings, obligates the states to deter from unlawful termination of a person’s life, inquire on deaths and proactively take measures to prevent the loss of life (Xenos, 2007). These key aspects are of paramount consideration due to the vulnerability of the right to life being abused by state forces due to the secrecy the correctional facilities provide.
The protection from the unlawful deprivation of life is one of the most sensitive issues for the convicted. Prisons basically constitute of persons regarded by the state as unhealthy to the common good of the society, incarcerated as a means of the forfeiture of the rights enjoyed by the rest of the citizens (Loira, 2006). Hence, prisons have an assortment of persons found guilty of various crimes from petty theft, robbery with violence to murder. Even for the most violent offender, prisons pose a threat to his existence, either from his fellow inmates, or the state police forces (Kory & Ursula, 2002). This, therefore, necessitates the observation of measures to prevent the termination of the lives. Notably, the unlawful termination of lives, especially arbitrarily, demeans the existence of human beings and lowers the estimation of the value of human life.
It is light of the prohibition of the unlawful termination of life that there arose the cessation of the issuing of the death penalty as capital punishment to offenders in case of proof of guilt by a court of law, even in Turkey (Muftuler, 2005). The legislation of internal rules to determine the use of lethal force by state machinery also crucially arose to avoid the loss of life through abuse (Seneviratne, 2004). In cases of the termination of life, the European Court of Human Rights, as evidenced in McCanna and Others v UK [1996] 21 EHRR 97, requires the government to carry out transparent and effective investigations, then offer sufficient reasons for the violation as per Regina (Amin) v. Secretary of State for the Home Department [2004] 51 UKHL 653. Such investigations are necessary especially if the person dies in detention since the circumstances of such deaths shift the burden of proof entirely on the state, as advanced Selmouni v. France [2000] 29 EHRR 403. In regulating the state police powers, commonly referred to the duty of command, control and training, the police are supposed to be highly trained and monitored continuously (Seneviratne, 2004). The lack of adherence to these obligations leads to the finding of guilt by the Strasbourg Court, and consequently, sanctions as seen in Kelly and Others v United Kingdom [2001] 30 EHRR 96 and Osman v United Kingdom [1998] 29 EHRR 245.
The implementation of the prohibition on the unlawful termination of life, in light of the preceding, does not risk being unsustainable in prisons. All it mandates is for the state to carefully define the applicability of the use of lethal force in incarceration centres, with such actors being monitored continuously and highly trained. Therefore, the instances of the violation of the rights in incarceration centres indicate reluctance and complacency by the state. In order to evade the blame, the erring states cite that the implementation and observation of the human rights law is unsustainable, especially financially (Genders, 2002). This evasion of responsibility should, therefore, be condoned, as human life is of utmost importance, and its value should be accorded due regard at all times in all jurisdictions. Notably, the prohibition of the unlawful termination of life sometimes requires the state to ensure the taking of protective measures for the protection of the citizens.
The mandate of the government to partake in protective measures for the protection of citizens constitutes another duty intimated by Article 2 of ECHR. Such protective measures are wide and vary greatly, and may include the regulation of the ownership and use of gun laws in the public. This mandate is advanced in Strasbourg Court in Osman v United Kingdom [1998] 29 EHRR 245 in overruling the decision in Hill v. West Yorkshire [1987] UKHL 12, [1989] AC 53, by finding the liability of public bodies in case they did not take the necessary measures. This positive obligation is further advanced in LCB v United Kingdom [1999] 27 EHRR 212 which stipulated that the states should be proactive in taking measures to protect their citizens. In Makaraztis v. Greece [2004] 41 EHHR 492, the state was instructed to input measures for the prevention of crimes.
In the context of prisons, the positive duty to partake in measures to protect the people is fairly easier than that in the public. This is because of the high surveillance monitoring of the inmates. Additionally, such inmates are usually cut off from the rest of the society, and are in segregation (Bosworth, 2011). The prison system also invariably provides for the punishment of the inmates through searches and withdrawal of benefits in case of such misbehavior (Reicher, 2006).
However there still exists risks, especially for inmates who are housed with those who have shown a career in pursuit of violent crimes. Such violent offenders are often aggressive, having no regard for the lives of their fellow human beings, and even the staff. Such cases, therefore, necessitate their segregation from the rest of the inmates. In case of high prevalence, it is upon the government to take the requisite actions to ensure such lives are not lost. For instance, in the United States of America, the government built the toughest prison Florence, Colorado, known as The United States Penitentiary Administrative Maximum Facility (Browne et al. 2011). The prison is meant for persons who have exhibited the total disregard for the lives of other people, particular the correctional staff (Rovner, 2017). The extreme measures in the prison include longer isolation hours and extreme distancing measures.
The positive duty to take measures to avoid the loss of lives among inmates is commendably exhibited during this corona virus crisis. The respiratory illness has claimed 284000 lives globally, with 4.3 million infections as of 11th May 2020 (BBC, 2020). The positive implications of the taking of these measures is seen in the way lives of inmates across the United Kingdom have been safeguarded from loss to the virus. Notably, during the onset of the crisis in the UK, the Public Health England had identified prisons as the hotspots where the virus could wreak havoc, with an estimated 2500 deaths (PHE, 2020). This was in consideration of the vulnerability of the prison population due to the poor sanitary conditions, and insufficient medical care. However, the taking of the extreme measures such as longer hours in cells have yielded great results, as only 2000 inmates are infected (LA Times, 2020). Consequently, the PHE had to revise the death rates it had predicted. This, therefore, highlights that the predicted risks of unsustainability due to the demands of human rights are groundless.
The preceding indicate that indeed, the constraints on sustainability mentioned are indeed a fallacy. Instead, they are a means employed by the governments to evade the implementation of the demands of the humanitarian law. Additionally, they indicate an unwillingness for the government to be accountable, and ensure the protection of the rights of its citizens. This lack of accountability and hesitation from responsibility is further highlighted in the context of article 3 of protocol 1 of the European Convention on Human Rights.
For centuries, the British government has denied the inmates the right to participate in democratic elections, and vote their leaders in. The restriction of the government has persisted despite the country being a signatory and the awareness of the binding nature of the provision. The provision demands that all citizens have the right to participate in democratic elections in their country. Notably, the British government has encoded legislation on the restriction of inmates from voting, as highlighted in the Representation of the People Act of 1983. This doctrine was not foreign, as it had roots in the Forfeiture Act of 1870.
The contention on the allowance of the voting rights for the prisoners arguably culminated after a ruling by the Court in Hurst v. United Kingdom [2005] 102 ECHR 68. The court ruled that the blanket prohibition and restriction on voter eligibility was in contravention with the ECHR Code article 3 of protocol 1. The court did not recommend that all prisoners should be granted the eligibility. However, it noted that not only was the incompatibility a violation of human rights, but also posed a threat to the legitimacy of the legislature. This therefore tasked the government with amending the 1983 Act, and which resulted into the Voting Eligibility (Prisoners) Bill in 2012. However, this proposal was not popular, especially among the conservative factions.
The controversy and unpopularity of the proposed bill was majorly due to its seemingly contravention of the doctrine of forfeiture of rights by offenders. This was especially evident in the dissent of the then Prime Minister of England, David Cameroon. The Prime Minister expressed disgust for the thought of arguing for the vote, noting that it made him feel physically sick, and he would make sure the rule did not change under his watch (Mulholland & Stratton, 2011). This was despite the advice from the then Attorney General, who noted that such acts would be in stark breach of the Strasbourg Court. The dissent culminated with the introduction by Christopher Cope of the Convicted Prisoners Bill, a private members bill designed to consolidate defiance against the bill and the court.
As per the preceding, it is evident that the measures do not risk being unsustainable. Notably, the voting by prisoners is allowed in European countries like Czech Republic (Kandalec, 2013). What therefore is evident is the unwillingness and reluctance by the government and the factions of the society to deny their fellow human beings the exercise of their rights and freedoms. Notably, the apprehension on allowing prisoners to vote was even passed to the majority of British Colonies, like Kenya, who have never altered the position in the restrictive position, and have no plans for reform in any foreseeable future. Unfortunately, this reluctance is reflected in the implementation and observance of the rights in Article 3 of the European Convention on Human Rights Code.
Article 3 of the European Convention on Human Rights Code prohibits torture and inhumane or degrading treatment or punishment. This right is particularly crucial for the protection of individuals from severe violence and humiliating acts on their persons by the state police officers. Notably, the provision on the protection from torture and inhumane treatment is absolute, regardless of the conduct of the victim as per Chahal v. United Kingdom [1970] 23 EHHR 413.
The essence and importance from protection from torture and inhumane treatment is evident in several humanitarian cases. Notably, in Selmouni v. France [2000] 29 EHRR 403, courts have indicated the willingness to find states guilty of torture through the interpretation of the convent as a living instrument. In the celebrated case of Ireland v. United Kingdom [1975] EHRR 25, the court ruled found the use of five techniques inclusive of wall standing, among others, were inhumane and degrading, but did not amount to torture. A plea by the Northern Ireland government to the court to review its decision in 2018 was consequently declined. In Askov v. Turkey [1997] EHRR 553, the court declared that Palestinian hanging, a form of criminal punishment where the victim is suspended by his arms, was torture. Additionally, as per Chahal v United Kingdom [1977] 23 EHRR 413, the states are disallowed from extraditing individuals in the likelihood of facing torture and inhumane punishment in the recipient countries. This is further evidenced in Sobering v. United Kingdom [1989] 11 EHRR 439.
The preceding indicate that indeed the requirements of the human rights law, even when deemed excessive, do not predispose the rights to lack of continuous viability. Instead, such dismissals due to unsustainability are a defense by the successive governments to evade responsibility by and accountability of the rights of their erring citizens. Notably, to err is human, and such errors, no matter the gravity, should not condemn the offender to an existence of a wild animal. Despite the progress made in prisoner rights today, there still exists a need for the further protection of those theoretical rights through effective practical implementation. To achieve this however, the current narrative of stereotyping of prisoners as social misfits who deserve the harshest of punishments is crucial. Such an erroneous narrative should be replaced with the conceptualization of prisons as correctional institutions, designed to rehabilitate erring citizens.
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