Right to Humane Treatment in Prisons under the European Convention on Human Rights—Based on the Decisions of the European Court of Human Rights

• Main Authors: Yu-Ting Liu, 劉宇庭
• Other Authors: Tzung-Jen Tsai
• Format: Others
• Language: zh-TW
• Published: 2018
• Online Access: http://ndltd.ncl.edu.tw/handle/4d3y4r

碩士 === 國立臺灣大學 === 法律學研究所 === 106 === In general, a person in detention still enjoys all the freesoms and fundamental rights guaranteed under the Constituion other than physical freedoms. During the process of incarceration, ensuring that a person would be detained in conditions which are compatible with respect for his/her human dignity, that the manner and method of the execution of the measure do not subeject him/her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his/her health and well-being are adequately secured is quite accepted by ECHR (European Court of Human Rights). Article 3 of the European Convention on Human Rights (the ‘Convention’), which provides that no one shall be subjected to toture or to inhuman or degrading treatment or punishment, does not expressly provide that its terms are absolute. Nevertheless, Article 3 must be read together with Article 15 of the Convention, which states that no derogation from the provisions of Article 3 can be made. Thus, the European Convention imposes an absolute prohition on toture and other forms of ill-treatment. Yet, Article 3 does not ascribe any definitional characteristics to these forms of ill-treatment. Accordingly, the Court and the Commission of Human Rights have emerged to determine the distinction between the three categories of infringement identified in Article 3. Besides, the nature of the subject-matter alone is not enough to bring ill-treatment within the scope of Article 3. Ill-treatment must attain a minimum level of severity in order to trigger the provision''s application. Inevitably, the threshold is relative. The Court has held that it ''depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.’ However, the decisions of ECHR is more about substantively and effectively protecting the dignity of prisoners than just recognizing which forms of ill-treatment reach the threshold of treatment contrary to Article 3. This thesis adopts a term ‘the right to humane treatment in prisons’ not only to describe that prisoner shall be detained in conditions compatible with his/her dignity, but to urge that the government has the positive obligations to ensure his/her well-being be adequately secured by providing with the requisite medical assistance if in need. With regard to the uncertainty within the context of Article 3, this thesis will try to sort out different aspects of ill-treatment such as accommodation, hygiene, solitary confinement, and disciplinary punishments, and analyze Article 3 of the Convention through its interpretation based on the cases law of ECHR. Therefore, we can take a closer and more specific understanding how the European Human Rights judicial bodies have re-writtten Article 3 through the lens of human dignity. Since ‘the right to humane treatment in prisons’ enshrines different rights such as physical and mental integrity, personality right, and human dignity, this thesis proposes that due to different characteristics of such right, it should be seen as an independent right in our Constitution system. Besides, such right shall be recognized as an absolute right on account of the impermissibility of limitations or derogations through the interpretation of the Constitution.