The European Convention on Human Rights and Their Role in Ensuring the Rights of Prisoners - Coursework Example

The European Convention on Human Rights/ Human Rights Act and their role in ensuring the rights of prisoners Human rights are the freedom and privileges that should be enjoyed by all the people in the world irrespective of their citizenship and nationalism. Fairness, equality in treatment, and individual human dignity form the basic building blocks for any egalitarian society. The United Kingdom has an honored and deep rooted tradition in the evolution and development of human rights right from the Magna Carta of 1215, the 1689 Bill of Rights, its sincere contribution to the conscripting of the European Convention on Human Rights and the depiction of the Human Rights Act in 1998.1 Extensive deprivation of liberty can cause havoc to individuals who try to proclaim their human rights, particularly the prisoners. For individuals in detention, it does not mean that they lawfully forfeit all their rights simply for their status of imprisonment. Being an advisory board member of the National Prisoner Advice Service (NPAS), in this report, I would give the general guidelines on the rights of the prisoners abiding to the HRA and ECHR. After a brief introduction about the evolution of ECHR and HRA, the report will discuss about the main rights protected by the ECHR through HRA, the relevant duties imposed on public bodies by the HRA, how can prisoners reasonably be expected to be treated whilst in prison, voting, marriage, conjugal visits, and other related rights for the prisoners. The European Convention on Human Rights (ECHR) was founded after the Second World War by the member nations of the European council which was formed against the evil of the authoritarian countries that were responsible for the horrors of the Second World War.2 The council of Europe was composed of concurring member nations who had a strong desire to secure fundamental human rights, legislative democracy, and the rule of law. The ECHR established an organization at Strasbourg, France to review if any state violates or does not comply with the duties of the convention. The major contributor to the drafting and design of the ECHR is the United Kingdom. The convention was ratified by UK by March 1951 and finally the ECHR came into force by September 1953.3 The ECHR was composed of several articles each containing a short statement which defines a right/freedom and also it contained certain permitted exceptions. Apart from these articles, the ECHR also contained certain protocols which were formulated to provide utilitarian rights to the people. Many countries of the world had positive statements regarding the human rights in their constitution but UK did not own any such affirmative declarations regarding the human rights until 1998 although certain traditional rights like freedom of association, expression, assembly, and others was in existence. The basic idea was to ensure freedom to people in all their public activities. The labor government which came into power by 1997 assured to make drastic changes in the constitution by integrating the ECHR into the domestic laws, and explicitly drafted the Human Rights Act (HRA) in 1998, with HRA coming into effect in UK by October 2000.4 By this act, the people of UK were privileged to take their cases pertaining to human rights to the UK court. Before that, the people had to take their cases and complaints regarding human rights to the European Court of Human rights which is located at Strasbourg. The rights contained in the ECHR are included in the HRA under schedule 1. The rights explained by the HRA are termed as the convention rights. The HRA basically contains 16 rights, all of them referred from the ECHR. These rights are not only associated with matters of life and death but also include the rights a person should enjoy in his/her day to day life say for example, right to speech, expression, belief, right to fair trail, and many more. Now let us see what are the main rights protected by the ECHR through the HRA. Article 1 and 13 of the ECHR are not included in the HRA. The HRA ensures the right to life according to article 2. The right to life for all the people must be safeguarded by the law and the state shall not allow the execution of force on people which may lead to their death.5 This right has very limited exception to public bodies like the police in regard to their self-defense. Article 3 prohibits people from undergoing torture and inhuman degrading treatments. Article 4 provides right to people against slavery and forceful labor. According to this right, no one can be treated as a slave or expected to perform any kind of work under compulsion. Article 5 provides the people with the right to liberty and security. Everyone except those who are properly detained by the law for their criminal activities, have the rights to lead a free and secure life.6 Article 6 assures the right to fair trial for people accused with both civil and criminal charges. They have the rights to undergo an impartial and public trial for a reasonable time period and they are presumed to be innocent unless and otherwise they are proven to be guilty by the law and also during the investigation process they must be assured with certain minimum rights of conduct. Article 7 assures no punishment without the law, which is, people would not be considered guilty for an offence on account of any activity that did not constitute a crime by the law at the time period when it was committed. Article 8 provides the right to respect an individual’s family and private life. The individual also has all rights to have correspondence with his/her family.7 Article 9 provides right to freedom of thought, conscience and religion. Article 10 provides the right to expression that is; people are free to express their opinions and views without any fear. Like article 8, article 10 is also subjected to certain limited restrictions. Article 11 provides the people with the right to assemble as a group in a peaceful manner and for associations and unions. Though the national law would decide upon the age of marriage, article 12 provides every men and women the right to marry and begin their family life. Article 14 provides right against discrimination based on the grounds of religion, race, sex, political or personal status, unless and otherwise an objective justification is put forth for the difference in treatment.8 Certain protocols were added later to the ECHR and according to the article 1 of protocol 1, all the people have rights to enjoy their possessions and public authorities cannot interfere in this regard. The article 2 of protocol 1 states that no one can be denied of access to education. Article 3 of protocol 1 states that, the legislative member elections have to be conducted in a fair manner and through secret ballot system. There are certain qualifications like age, imposed on the eligibility of the voters. Article 1 of protocol 13 abolishes the use of death penalty. These are the main rights protected by the ECHR through the HRA. Next let us discuss the relevant duties imposed on the public bodies by the HRA, how they are supposed to treat clients, how clients can complain regarding any violation of rights, and how the court has to respond in this regard in accordance with the HRA. The statute of section 6(1) states that “it is unlawful for a public authority to act in a way which is incompatible with a convention right. This obligation does not apply if under the law the public authority could not have acted differently”.9 The public authorities stated in the above mentioned statute include tribunals, courts, local councils, police officers, prison officials, statutory bodies, and others. If an individual feels that any of this public authority has acted in an incompatible manner with that of the conventional rights, they can take this issue to the court of UK demanding justice. The public authorities must have a clear understanding about the rights and incorporate them properly in their day to day activities of delivering direct services to the clients or framing new procedures and policies for the public. At the same time public authorities must also keep in mind that the individual rights can never be permitted to obscure the safety issues of the public and uncertainties and complexities relating to a particular issue are to be dealt only through proper legal advice. Public authorities have to strike a balance between the rights of individuals and the interest of a broader community.10 Clients may sometimes face situations of a public authority restricting their rights. This restriction has to be just meant for attaining the objective based on the proportionality concept. At the same time, clients have full privilege to enjoy their absolute rights and they need not bear the intervention of public authorities in their absolute rights. If clients feel that their rights have been infringed they can very well sue the public authority in the courts of UK. Whatever may be case regarding human rights, the court has to interpret the statutes in such a way that it is compatible with the conventional rights emphasized by the HRA. As per the HRA the court has a responsible role in upholding the conventional rights. If suitors argue that their rights have been breached, the judiciaries have to deal with issues of human rights that have been formerly reserved in the court of Strasbourg.11 Then, if the judges are dealing with such a case, the court has to decide on whether the UK laws are well-matched or it breaches the conventional rights of the HRA.12 If a client deserves recompense then the court has to seek the compensation from the public authority under reasonable grounds. The court can also provide recommendations for the public authority to avoid any future human right violations. The human rights laws of the HRA seem to be intricate with respect to the prisoners. Obviously the detainees cannot enjoy all rights as that of free individuals yet they too have privilege to enjoy certain basic rights according to the article 3, 8, and 12 of the HRA. The European Court of Human Rights has guaranteed certain basic freedom and rights to the prisoners under the ECHR. Article 3 protects them from undergoing torture and ill treatment. In addition to this right, they are privileged for the right to respect for family life, right to practice the religion they believe in, right to freedom of expression, right to effectively access the court and lawyers in order to undergo a fair trial, right to respect for private, family life and correspondence, and many more.13 The European court has made earnest efforts to develop case-law in the regard of protecting the fundamental rights of prisoners particularly to create a link between the prisoners and the outside world, so that they can positively and successfully reintegrate into the society after completing their sentence period. Article 3 protects prisoners from severe ill-treatments whilst in the prison. Case-law in this regard is framed considering several issues like detention conditions, over-crowding, deprival to the access of basic hygiene and medical facilities, sufficient food, and others.14 Prisoners’ accommodation in the prison has to comply with fundamental human dignity and privacy. The health and hygiene of prisoners have to be taken care and special attention must be paid towards the floor space, proper ventilation, and lighting. These basic rights for prisoners are not to be breached by the issues of overcrowding in the prison. Penitentiary systems are to be managed in such a way to protect the dignity of the detainees. Prisoners have to be carefully evaluated to decide if the pose safety threats to other prisoners and prison staffs. Vulnerable prisoners have to be detained in isolation. Nutritious and adequate food containing required energy and protein content have to be provided to the prisoners taking into consideration their age factor, health conditions, culture, and religion. Prisoners have full rights to access the available health services without any discrimination based on their current status of imprisonment. Physical and mental illness suffered by prisoners are to be treated with proper medical services.15 Prisoners are also eligible for obtaining surgical, medical, and psychiatric services from the medical practitioners during their sentence period. Let us discuss a real case in this regard, the Case of Ireland v. The United Kingdom, 1978.16 The police force of Northern Ireland during the period of 1971 to 1975, implemented several torturing techniques on the detainees who were suspected to be terrorists. While interrogating with the detainees, they used a series of tormenting techniques like making them to stand in a ‘spread eagled’ position for hours together which could cause severe stress to them, hooded the heads of the prisoners, deprived them of food, water, and sleep, exposed them to incessant loud noises, and many more.17 When this issue was taken to the European Court of Human Rights, the court severely condemned the security forces of Northern Ireland and held that though the tormenting techniques did not cause corporeal injury, they caused severe psychological sufferings to them. Article 8 ensures prisoner’s right of correspondence with the outside world and respect for their personal and family life. Let us discuss a real case in this regard, AP (Trinidad & Tobago) v Secretary of State for the Home Department [2011] EWCA Civ 551. AP was a foreign criminal and was convicted of a series of offences during the years 2006 and 2007. AP was convicted of possessing cocaine and was sentenced to a period of 18 months and the Secretary of the State for the Home Department issued a deportation order to AP considering the welfare of the public.18 AP appealed against his deportation to the court. The court considering all factors of asylum and immigration held that his deportation would be a breach of article 8 of the HRA. AP had lived in UK since 1991 that is from his age of four and what is more important is that, he had a child with whom he had a very strong bond of love and care.19 The court highlighted the above evidences and stated that his deportation is unfair and breached his right to private and family life.20 Prisoners have rights to communicate over letter, telephone, or any other medium of communication with their family members frequently. The family members of the prisoners and representatives from external organizations can make periodical visits to the prison to meet the prisoners. These visits may be subjected to certain restrictions on account to security considerations. The prisoners have rights to maintain and develop relationship with family members through their visits to the prison.21 The prisoners are eligible to receive appropriate support from the prison authorities in order to maintain their correspondence with the outside world. The prisoners also have rights to subscribe to and read periodical magazines, newspapers, listen to radio and television broadcasts so that they can keep themselves informed about the current affairs. This was validated by the judgment in the Case of Enea v. Italy which strengthened the role of article 8 regarding prisoners’ rights in accessing and reading magazines, and other materials.22 Like the other free individuals, prisoners too have the right to vote as per the ECHR. Prison authorities make necessary arrangements for the prisoners to allow them to take part in the elections as the right to vote for prisoners is not restricted by the national laws.23 Article 3 of protocol 1 ascertains individual’s contribution in the configuration of law making and it does not deprive the electoral rights of the prisoners. Convicted prisoners have rights to participate in the parliamentary elections regardless of their sentence period and the seriousness of the offence committed by them.24 Prisoners who would be conditionally released from prisons for a short duration also have all rights to vote in the public elections. Article 12 of the HRA ensures prisoners their right to marry during their imprisonment. According to the HRA convicted prisoners have all rights to enjoy their fundamental freedom which includes the right to get married. Article 12 reiterates that the detainees do not forfeit the right to marry simply because of their status of imprisonment.25 It is obvious that the facilities during the period of detention are not designated for the purpose of marriage. Yet when a prisoner wants to get married, the prison authorities cannot question the prisoner regarding his reasonability for getting married. Instead, they are supposed to make practical arrangements and time adjustments for facilitating a prisoner to get married though these arrangements are subjected to certain restrictions by law. The HRA strongly supports rehabilitative elements for prisoners thus their desire to get married is strongly supported by the case law of the HRA. The Prison Service Order (PSO) 4450 ensures that prisoners have all rights to get married as per the civil law and in accordance to article 12 of the HRA unless the marriage poses a threat to prison order, public, and national security.26 The HRA also allows conjugal visits for the prisoners. In the recent times prisoners could apply to the ministry of justice claiming for fertility treatments like artificial insemination.27 Though there are severe restrictions in this regard there are chances for inmates to receive a positive response. We have to be grateful to the ECHR and HRA which ensures us with a great deal of rights ascertaining our liberty. The HRA has a profound influence in the alteration of the constitutional framework of UK. The ECHR through the HRA provides the needed statutes which secure our rights from the intervention of public and private bodies. Prisoners are humans too and they are assured with some fundamental freedom and rights as per the HRA. To sum up, the real motive of detaining a convict is not to punish but to rehabilitate. Bibliography Table of Cases ‘Case of Ireland v. The United Kingdom, 1978’ (ECHR) ‘Case of Enea v. Italy’ (ECHR 2009) ‘AP (Trinidad & Tobago) v Secretary of State for the Home Department [2011] EWCA Civ 551 - Deportation _ Recent Decisions’ (Descartes Solicitors) accessed 06 May 2015 Books Easton S, Prisoners Rights: Principles and Practice (Taylor & Francis 2011). Elliott M and Thomas R, Public Law (Oxford University Press 2014) Fenwick H, Civil Liberties and Human Rights (Routledge 2009). Gordon R and Ward T, Judicial Review & the Human Rights Act (Routledge 2013) Leyland P and Anthony G, Textbook on Administrative Law (Oxford University Press 2012) Morris C, Parliamentary Elections, Representation and the Law (Bloomsbury Publishing 2012) Rainey B, Wicks E and Ovey C, The European Convention on Human Rights (Oxford University Press 2014) Robertson D, A Dictionary of Human Rights (2nd edn, Europa Publications 2004) Slapper G and Kelly D, The English Legal System: 2014-2015 (Routledge 2014) Government Publications ‘European Convention on Human Rights’ (ECHR- Council of Europe) accessed 06 May 2015 ‘Human rights: human lives – A handbook for public authorities (Ministry of justice 2006) accessed 06 May 2015. ‘Marriage of prisoners’ (HM prison service 2007) accessed 06 May 2015 Ovey, Clare. ‘Ensuring Respect of the Rights of Prisoners under ECHR as a part of their Reintegration Process’ (Council of Europe 2014) accessed 06 May 2015 ‘Prisoners right to vote’ (ECHR 2015) accessed 06 May 2015 Websites ‘Article 3 No torture, inhuman or degrading treatment’ (Liberty) accessed 06 May 2015 Koomson, Henreitta and Dorothy Flower, ‘Fertility treatment for prisoners : the scope of human rights’ (Lexology 2011) accessed 06 May 2015 ‘Recent developments in the case-law of the European court of Human rights relating to the European prison rules 2006’ (Council of Europe 2010) accessed 06 May 2015 Read More