A comparative approach to prisoners' rights in the European Court of Human Rights and Inter-American Court of Human Rights jurisprudence.

Author:Seatzu, Francesco
 
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  1. 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. (20)

    Although the international law standards on the protection of detainees' fundamental rights have been the subject of numerous peer-reviewed articles and at least one monograph in French, (21) to date, very few contributions have investigated in depth the reasons behind the different approaches taken by the international monitoring bodies currently operating within the main international legal instruments for the protection of human rights.

    This paper aims firstly at assessing, and subsequently comparing and contrasting, the respective contribution of the ECtHR, the IACtHR, and the Inter-American Commission of Human Rights ("IACommHR") to the widespread success of the values embodied in international legal instruments on the protection of detainees' rights. As Professor Thomas Buergenthal indirectly suggests, this type of comparative approach to the topic is strongly advisable because "although the American Convention is modelled on the European Convention, it departs from or improves upon the latter in a number of important respects." (22) In this paper, an empirical analysis is conducted on the compliance of the judicial decisions and advisory opinions of the two regional human rights courts in Europe and the Americas with the international standards on the protection of detainees' rights. This requires comparative study of the influence of those legal instruments on the case law of the ECtHR and the IACtHR. To do so, this paper starts with a brief discussion of the SMR, followed by examination of the EPR, the Principles and Best Practices on the Protection of Persons Deprived of their Liberty in the Americas, and the Kampala Declaration on Prison Conditions in Africa.

  2. A SURVEY OF THE INTERNATIONAL STANDARDS ON THE PROTECTION OF THE HUMAN RIGHTS OF DETAINEES

    To ascertain and assess critically the relationship between detention provisions in the regional human rights conventions and international standards and guidelines on the protection of the fundamental rights of detainees, it is useful to consider those standards and guidelines that have succeeded in clarifying the most difficult issues that arise from a human rights approach to prison management.

    A broad array of international standards on the protection of the fundamental rights of detainees have existed for the international community since the early 1950s. (23) The historical origins and main features of the standards that are, objectively speaking, the most useful for interpreting and applying the articles on detention in the ECHR and ACHR are briefly outlined below.

    The first modem (non-legally binding) international standards for the protection of the rights of detainees were adopted by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1955 and were approved by the Economic and Social Council in its resolutions of 31 July 1957 and 13 May 1977. (24) The most noteworthy aspects of these standards--the SMR--are their expansion on and detailed elaboration of a wide range of fundamental rights, including certain social and economic rights, and their reference to human dignity as an interpretative tool for all of the provisions. (25) Clearly, the latter aspect was developed on the ground that detention conditions could easily debase or even annihilate human dignity. (26) Another aspect worthy of note is that the SMR also addressed and applied to juvenile detainees and prisoners. (27) This feature of the SMR is in common with the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the so-called "Beijing Rules"), which boosts the application of several standards, values, and requirements set by the SMR, such as proportionality of the sanction, and the requirements for rehabilitation and resocialization inside prisons and similar institutions. (28) This feature is also in line with the Basic Principles for the Treatment of Prisoners, which was adopted in 1990 to facilitate the enforcement of the SMR values at a national level. (29)

    The EPR were originally adopted in 1973 and were subsequently updated in 1987 and 2006. (30) The EPR were drafted to address the specific needs of detainees in Council of Europe Member States. (31) More precisely, the rules were formulated with the purpose of boosting the application of the globally acknowledged soft law rules on detention, in particular those of the SMR. (32) The EPR are mirrored, in the Inter-American system of human rights protection, by the Principles and Best Practices on the Protection of Persons Deprived of their Liberty in the Americas. (33) The Inter-American Commission on Human Rights ("IACHR") adopted these Principles in 2008 with the aim being to set specific and more effective rules concerning detention conditions and issues related to torture and other inhuman or degrading treatment within the framework of the Organization of the American States ("OAS"). (34) The EPR and the Principles and Best Practices on the Protection of Persons Deprived of their Liberty in the Americas have many points in common. Firstly, they share the same goal: namely to increase the effectiveness of the protection of detainees in their contexts of application. (35) Secondly, they were both inspired by the SMR, which constitute their archetype. (36) The Kampala Declaration on Prison Conditions in Africa ("the Kampala Declaration") (37) serves the same purpose and restates that prisoners do not forfeit their rights. (38) This soft law instrument on prison management was adopted by a pan-African conference in 1996 (39) and, similar to the EPR and the Principles and Best Practices on the Protection of Persons Deprived of their Liberty in the Americas, it is patterned on the SMR (albeit its statements are more concise). Both the United Nations General Assembly and the United Nations Economic and Social Council ("ECOSOC"), in...

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