Embedding Human Rights in Prison: English and Dutch Perspectives

224 Pages·2017·1.54 MB·English

by  Anastasia Karamalidou (auth.)

Anastasia Karamalidou
EMBEDDING
HUMAN
RIGHTS IN
PRISON
English and
Dutch Perspectives
Embedding Human Rights in Prison
Anastasia Karamalidou
Embedding Human
Rights in Prison
English and Dutch Perspectives
Anastasia Karamalidou
Health & Social Sciences
University of the West of England
Bristol, UK
ISBN 978-1-137-58501-1 ISBN 978-1-137-58502-8 (eBook)
DOI 10.1057/978-1-137-58502-8
Library of Congress Control Number: 2016963569
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To my parents
Contents
1 Human Rights and Prisons 1
2 English and Dutch Prisons: ‘Contrasts in Tolerance’ 17
3 English Penal Policy and Prisoners’ Human Rights 37
4 Dutch Penal Policy and Prisoners’ Human Rights 89
5 Human Rights in English Prisons: Prisoners’ Views 115
6 Human Rights in Dutch Prisons: Prisoners’ Views 151
7 Embedding Human Rights in Prison 189
Bibliography 199
Index 217
vii
1
Human Rights and Prisons
Introduction: Prisoners’ Human Rights in
Europe: A Snapshot
In the European context, in the field of human rights and prisons, the
Council of Europe (CoE) has made great strides in the advancement of
prisoners’ human rights in terms of recognition and protection. It has
achieved this primarily through the 1950 European Convention for
the Protection of Human Rights and Fundamental Freedoms (ECHR)
and its enforcement organ, the European Court of Human Rights in
Strasbourg (ECtHR). The ECHR is not a prison treaty, but prisoners
have invoked its provisions numerous times and with success (van Zyl
Smit and Snacken 2009). For example, based on the latest ECtHR his-
torical review of its activity, between 1959 and 2009, Article 6 violations
(right to fair trial) featured in 47.47% of the ECtHR judgments and
Article 5 violations (right to liberty and security) in 10.72% of the judg-
ments (ECtHR 2010).
Prisoner victories in Strasbourg are many and important. Golder v UK
(1975) challenged successfully for the first time the hitherto ECtHR
view that prisoners’ rights were inherently and expressly limited by vir-
© The Author(s) 2017 1
A. Karamalidou, Embedding Human Rights in Prison,
DOI 10.1057/978-1-137-58502-8_1
2 Embedding Human Rights in Prison
tue of their incarceration (van Zyl Smit and Snacken 2009: 10), find-
ing a violation of Articles 6 and 8 (rights to a fair trial, and respect for
private and family life). The gist of the ruling was that while it was
reasonable to have interferences with inmates’ fundamental rights and
freedoms, reasonableness alone was not a sufficient criterion; it ought
always to be accompanied by the principles of proportionality and
legality with regard to the aims that the additional restrictions intended
to serve (Kaufmann 1999).
Another instance of the gradual divergence from its once unsympa-
thetic approach to prisoner litigation is found in the Court’s interpreta-
tion and application of Article 3 (prohibition of torture) to the prison
context. In the 1970s and 1980s, the Court was inclined to find breaches
of Article 3 mainly in respect of overcrowded living conditions of and
inadequate healthcare for political prisoners and when such treatment
was deliberate (Snacken and van Zyl Smit 2009: 12). Substandard liv-
ing conditions brought about by prisoners as a form of protest or expe-
rienced as a result of disciplinary punishment or generally on grounds
of security did not meet the minimum required threshold to engage
Article 3. The same applied to close body searches (Kaufmann 1999:
459–462, 464). This contrasts sharply with later rulings in favour of
prisoners where, for example, their overcrowded living conditions were
not deliberate (Dougoz v Greece 2001), they had been subjected to
daily strip-searching and close body searches on security grounds (Van
der Ven v Netherlands 2003), and they had been left naked for seven
days in solitary confinement (Helling v Germany 2011). To these find-
ings we can add Ocalan v Turkey (2003) and Vinter and Others v UK
(2013) in which the death penalty and lifelong imprisonment without
the possibility of review and release on parole were found in contraven-
tion of Article 3. Other circumstances ruled to engage Article 3 involve
being sentenced or likely to be sentenced to the death penalty or being
placed in conditions such as chain gangs following extradition to the
USA (Dumortier et al. 2012).
Moreover, the Court has taken a stance against the concept of joint
enterprise in criminal matters, finding it incompatible with Article 6 in
Gotkepe v Belgium (2005; cited in Dumortier et al. 2012: 117–118).
Also, through a series of rulings, life and indeterminate sentenced pris-
oners have seen their procedural rights under Articles 5 and 6 gradually
1 Human Rights and Prison s 3
being strengthened, with the Court delivering damning judgments on (a)
the lack of periodic reviews of the prolongation of their detention beyond
their tariff and of inadequate provision of rehabilitative courses and access
to them so as to prepare for such reviews, (b) on the executive’s exercise
of sentencing functions in respect of tariff-setting and release procedures,
and (c) on the quality of correspondence between the grounds of the
original sentence and those employed for its continuation beyond the set
tariff and following recall.
Last but not least, with regard to the right to life, the Court has ruled
that prison authorities are not to act in a way that is likely to physically
endanger prisoners and their relatives or that is foreseeable to have such
an effect. At the same time, they are required to have in place measures
that safeguard prisoners’ lives, including when a prisoner poses a risk to
themselves such as in cases of self-harm and suicide (Keenan v UK 2001).
Prisoner-on-prisoner homicide that is the outcome of ineffective com-
munication between agencies regarding prisoners’ medical records and
of inadequate screening procedures for cell-sharing purposes is another
relevant example.
Next to the CoE, since the mid-1990s, the European Union (EU)
has been also positioning itself as a major player in human rights advo-
cacy, as well as criminal justice matters, leading scholars to talk about
the emergence of the EU as a penal actor (Baker 2013) and of a distinct
European penology (Girling 2006; Snacken and van Zyl Smit 2013;
Daems 2013). Situated within the wider EU project on economic
(and also political in more recent years) integration, the 1997 Treaty of
Amsterdam provided the main impetus to EU activity in these spheres.
It laid out for the first time ‘liberty, democracy, human rights, and the
rule of law’ as the foundations of the EU and firmly established ‘free-
dom, security and justice’ as EU competences whose importance and
dominant place in EU affairs were consolidated by the 2007 Lisbon
Treaty (Alston and Weiler 1999; Baker 2013: 78). This is evidenced in
the planned (albeit currently stalled) EU accession to the ECHR1 as
1 The EU accession to the ECHR is a legal requirement under the 2007 Lisbon Treaty, which came
into force in 2009. For these purposes, an accession treaty between the CoE and the EU was negoti-
ated in 2013, which the Court of Justice in its Opinion 2/13 found, however, incompatible with
EU Law.
4 Embedding Human Rights in Prison
well as in standard-setting initiatives and the setting up of EU bodies
with a human rights and a justice mandate.2
Pertinent EU standard-setting initiatives, which are intrinsically rel-
evant to a human rights compliant prisoner treatment, are, for exam-
ple, the 2000 Charter of Fundamental Rights of the European Union,
which became justiciable before the European Court of Justice (ECJ)
under the Lisbon Treaty (Baker 2013: 79), and the 2004 European
Recommendation on the Rights of Prisoners in the European Union.3
They contain provisions and call for the implementation by member states
of standards found in the ECHR (and its case law), as well as in other
hard and soft CoE human rights law, such as the European Convention
for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (ECPT) and the European Prison Rules (EPRs). For exam-
ple, among the provisions of the Charter we find the rights to an effec-
tive remedy, to one’s defence and to a fair trial, a re-affirmation of the
principles of the presumption of innocence, double jeopardy, legality and
proportionality of criminal offences and penalties. It also recognises the
inviolability of human dignity, the rights to life and the integrity of the
person, and the prohibition formula of torture and the death penalty,
all of which are directly relevant to a human rights informed prisoner
treatment.
Moreover, promoting (not without controversy as we shall see) the
‘free movement of criminal justice’ based on the principles of mutual
trust and recognition (Baker 2013: 88–89), developments in the area of
justice have seen Framework Decisions on the implementation of judi-
cial measures, such as custodial sentences and probation orders across
2 See, e.g. Eurojust, Europol, and FRA. Eurojust is a judicial co-ordination unit that is tasked with
the co-ordination of investigations into and prosecutions of transnational crime between relevant
authorities in different member states. It comprises prosecutors, judges and police officers drawn
from member states. Europol is the EU’s law enforcement agency. It focuses on combatting trans-
national organised crime and terrorism and provides expert assistance to national law enforcement
agencies. FRA is the European Union Agency for Fundamental Rights and is tasked to provide
expert advice to EU institutions and nation states on human rights protection.
3 It is worth noting that the 2004 European Recommendation on the Rights of Prisoners in the
European Union proposed the adoption of a Prisons Charter by ECHR and non-ECHR member
states. The proposal was rejected by the CoE Committee of Ministers on grounds of avoiding
duplication of existing standard-setting instruments and monitoring arrangement (CoE
Parliamentary Assembly 2006).