Human Rights and Prisons

12.3 Relevant International Cases

This Section details legal cases (2004 – 2009), appertaining to prisons and rights, from international courts. It is shown that a number of recent international court decisions have affirmed:

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  The requirement that conditions and treatment must be appropriate to a prisoner’s state of health – and that inadequate treatment may constitute inhuman or degrading treatment.
  

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  The right to family contact should not be interfered with through onerous visiting conditions.
  

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  The right to privacy of medical correspondence.
  

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  The requirement that any suicide in custody must be independently investigated.
  

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  Restrictions on the state’s ability to limit prisoners’ voting rights.
  

Material Conditions

Conditions Of Detention Not Appropriate To Health (Italy)

Scoppola v Italy [2008] ECHR 50550/06 (10 June 2008)
The European Court of Human Rights held that there had been a violation of art 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights because the applicant’s conditions of detention were not appropriate to his state of health.
In the Court’s view, in circumstances such as these, the State should have either transferred the applicant to a better-equipped prison in order to avoid any risk of inhuman treatment or deferred execution of a sentence that had become tantamount to treatment contrary to art 3 of the Convention.

Access to Others

Right To Family Contact (Spain)

Tornel v Spain, UN Doc CCPR/C/95/D/1473/2006 (24 April 2009)
The UN Human Rights Committee held that the rights of a prisoner’s relatives to protection from arbitrary interference with their family life, protected under art 17 of the International Covenant on Civil and Political Rights, will be infringed if prison authorities adopt a ‘passive attitude’ to keeping them informed of significant changes in the prisoner’s health.
Refusal To Attend A Funeral Can Be A Violation Of A Prisoner’s Rights (Poland)

Czarnowski v Poland [2009] ECHR 28586/035 (20 January 2009)
The Applicant, Mr Edward Czarnowski, lodged an application with the European Court of Human Rights against Poland for breach of art 8 of the European Convention on Human Rights. Art 8 provides:
‘Everyone has the right to respect for his private and family life…There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’
Onerous Visitation Restrictions A Violation Of Prisoners’ Rights (Poland)

Ferla v Poland [2008] ECHR 55470/00 (20 May 2008)
The European Court of Human Rights held that a Polish prisoner’s right to respect for his family life was violated by onerous visitation restrictions, which substantially prevented him from seeing his wife and son. The applicant was awaiting a final determination on a serious assault charge. Although his wife had previously made a statement to police about the alleged crime, the risk of prejudicing her willingness to testify at trial was considered insufficient reason for interfering with the right to family life.
Right To Vote (Australia)

Roach v AEC and Commonwealth of Australia [2007] HCA 43 (30 August 2007)
This restricted the state’s ability to limit prisoners’ right to vote. It notes that prisoners with a sentence over three years may still have voting rights curtailed, but significantly rolls back the power of the state to disenfranchise prisoners in other respects.
Monitoring / Confidentiality Of Prisoner Correspondence (UK)

Szuluk v United Kingdom [2009] ECHR 36936/05 (2 June 2009)
The European Court of Human Rights held that it is a disproportionate interference with an individual’s right to privacy to monitor their confidential medical correspondence with their specialist. The prison governor had directed that the applicant’s correspondence with his specialist be opened and inspected by the prison medical officer to ensure that there were no illicit enclosures. The applicant had sought to correspond confidentially with his specialist to ensure that he was receiving appropriate care and supervision with respect to his potentially life-threatening condition. The applicant, who had lost before the UK Court of Appeal, successfully argued that, by analogy with legal correspondence, the risk of his abusing the confidentiality of his correspondence for illicit purposes was outweighed by the likelihood that inspecting his correspondence would inhibit what he conveyed to the specialist, thereby harming the quality of advice that he received.

Health services

Right To Privacy In Medical Correspondence (UK)

Szuluk v United Kingdom [2009] ECHR 36936/05 (2 June 2009)
See above.
Rights Will Be Said To Be Violated When Conditions Of Detention Are Not Tailored To A Prisoner’s Health (Italy)

Scoppola v Italy [2008] ECHR 50550/06 (10 June 2008)
See above.
Suicide Of A Prisoner Can Be Blamed On Authorities’ Failure To Provide Medical Care (France)

Renolde v France [2008] ECHR 5608/05 (16 October 2008)
On 16 October 2008, the European Court of Human Rights held that the suicide of a prisoner suffering from mental illness in France was attributable to the authorities’ failure to provide adequate medical care. This failure was a breach of the deceased’s right to life and right to be free from inhuman or degrading treatment.
The House of Lords has recently unanimously held that the right to life established by art 2 of the European Convention on Human Rights requires the state to carry out an independent investigation whenever a person is left incapacitated by a suicide attempt in custody.
Prisoners Should Have Rights To Artificial Insemination Procedures (UK)

Dickson v United Kingdom [2007] ECHR 44362/04 (Grand Chamber, 4 December 2007)
This case concerns prisoners’ access to artificial insemination facilities. The applicants complained that the refusal by the Secretary of State to allow the first applicant access to artificial insemination facilities while in prison constituted a breach of the applicants’ rights under art 8 (right to private and family life) and art 12 (right to marry and found a family) of the European Convention on Human Rights.
The Grand Chamber of the European Court of Human Rights held (by a 12:5 majority) that there had been a violation of art 8, but that it was not necessary to examine the complaint under art 12.

Treatment

Example Of Degrading Treatment (Poland)

Wiktorko v Poland [2009] ECHR 14612/02 (31 March 2009)
The European Court of Human Rights held that the treatment of a Polish national while detained at a government-run ‘sobering-up centre’, constituted degrading treatment in violation of the substantive protection of art 3 of the European Convention on Human Rights. The applicant in this case was forcibly undressed by two male employees and was immobilised by restraining belts for a period of ten hours. Further, the Court held that subsequent investigations and proceedings carried out by Polish authorities were inadequate, in violation of the procedural limb of art 3 of the Convention.
Obligation Of Government To Conduct Investigation (UK)

AM & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2009] EWCA Civ 219 (17 March 2009)
The UK Court of Appeal affirmed that the government has an obligation to conduct an independent investigation where there is credible evidence of a potential breach of arts 2 (right to life) and 3 (prohibition against ill-treatment) of the European Convention on Human Rights.
Treatment Of Aboriginal Man A Violation Of Detention Rights (Australia)

Brough v Australia (UN Human Rights Committee, Communication No 1184/2003)
In March 2006, the UN Human Rights Committee published a landmark finding concerning alleged breaches of articles 2(3) (right to an effective remedy), 7 (right to freedom from cruel, inhuman or degrading treatment or punishment), 10 (rights of persons deprived of their liberty) and 24 (right to adequate protection for children) of the International Covenant on Civil and Political Rights (ICCPR) in a New South Wales prison. The case involved a 17 year old Aboriginal youth, who suffered from a mild intellectual disability. Corey Brough was placed in a solitary confinement cell for 72 hours, where the artificial lights were on all the time and where he was stripped to his underwear and his blanket was taken away from him. The Court noted “his status as a juvenile person in a particularly vulnerable position because of his disability and his status as an Aboriginal” and found that this treatment violated the provisions of the ICCPR relating to humane treatment, separation of juveniles and adults, and article 24(1) which requires that children be protected by society and the State without discrimination.
Handcuffing (England And Wales)

Faizovas, R (on the application of) v Secretary of State for Justice [2009] EWCA Civ 373 (13 May 2009)
This case sets out a requirement for prisons to undertake detailed risk assessments if they deem it necessary for handcuffs to be used on a prisoner during hospital visits. The England and Wales Court of Appeal found that the risk assessments carried out in this case demonstrated that the prisoner posed a realistic risk of absconding. In light of this security risk, the use of handcuffs did not constitute degrading treatment. Nonetheless, the prison was instructed to revise its policy on handcuffing, which was deemed to fall short of current human rights standards.
Restraint And Seclusion Of Schizophrenic A Breach Of Rights (Ukraine)

Kucheruk v Ukraine [2007] ECHR 2570/04 (6 September 2007)
In this case, the applicant, a man with chronic schizophrenia, was subjected to the practices of restraint and seclusion while detained. The applicant successfully complained to the European Court of Human Rights of violations of art 3 (prohibition on cruel, inhuman or degrading treatment or punishment) and art 5 (right to liberty and security of person and freedom from arbitrary detention) of the European Convention on Human Rights in relation to his detention, seclusion, restraint, and the investigation by the authorities of his subsequent complaints.
Lawfulness Of Strip Searches (France)

Frerot v France [2007] ECHR 70204/01 (12 June 2007)
The European Court of Human Rights held that frequent, unwarranted strip searches conducted on the applicant violated the prohibition on degrading treatment in art 3 of the European Convention on Human Rights (‘ECHR’). Further, certain restrictions placed on the applicant’s correspondence violated the right to privacy protected by art 8 of the ECHR.

General Protection Measures

Need For Review Of Detention (UK)

Secretary of State for Justice v James [2009] UKHL 22 (6 May 2009)
The House of Lords confirmed that a breach of arts 5(1)(a) and 5(4) of the European Convention on Human Rights may occur in circumstances where a prisoner is detained for longer than is necessary for public protection or for a lengthy period without a meaningful review of the risk they pose to the public.
However, the House of Lords held that a violation is only likely to arise if: the review system breaks down entirely, such that meaningful review of a prisoner’s case is rendered impossible; or a prisoner is detained for ‘a period of years’ without an effective review of their case.
Justice Secretary’s Ability To Make Parole Decisions Not A Breach Of Rights (UK)

Black v Secretary of State for Justice [2009] UKHL 1 (21 January 2009)
The House of Lords held that the Justice Secretary’s power to determine whether certain long-term prisoners should be released on parole does not constitute a breach of art 5 of the European Convention on Human Rights, which requires the lawfulness of detention to be determined by a court.
Mandatory Life Imprisonment Without Parole Not A Breach Of Rights (UK)

Wellington R, (On the Application of) v Secretary of State for the Home Department [2008] UKHL 72 (10 December 2008)
The House of Lords held that a mandatory sentence of life imprisonment without parole does not necessarily constitute inhuman or degrading treatment or punishment under art 3 of the European Convention on Human Rights.
Right To Life Requires State Investigation Into Suicide Attempt While In Custody (UK)

R (on the application of JL) v Secretary of State for Justice [2008] UKHL 68 (26 November 2008)
The House of Lords unanimously held that the right to life established by art 2 of the European Convention on Human Rights requires the state to carry out an independent investigation whenever a person is left incapacitated by a suicide attempt in custody.
Details Of A State’s Obligation To Investigate A Suicide Enumerated (UK)

JL, R v Secretary of State for the Home Department [2007] EWCA Civ 767 (24 July 2007)
This case concerned the investigative duties imposed upon authorities by art 2 of the European Convention on Human Rights (the right to life) following the injury or death of an individual while in custody. In particular, the case turned on whether an obligation to carry out an ‘enhanced investigation’ was subject to a threshold test of ‘arguability’. The content of an enhanced investigation has certain features: (i) the State itself must commence the investigation; (ii) the investigation or inquiry must be open to public scrutiny; (iii) the investigator must be independent of those persons involved; and (iv) the family must have proper opportunity to participate (R (on the application of Amin) v Secretary of State for the Home Department [2003] UKHL 51). In the present case, although a primary investigation had taken place, it was argued that this was insufficient to meet the requirements of art 2, namely to conduct an enhanced investigation.