Imprisonment of the Elderly and Death in Custody

The Right to Review

Aleksandr Khechumyan

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9781138554832
• eBook ISBN: 9781351371223
• Edition: 1
• Topic: Law
• Subtopic: Civil Law
• Index: Law

Over the past few decades, there has been a sharp increase in the number of elderly prisoners, and hence a rise in the number of prisoners dying in custody. In this book, Khechumyan questions whether respect for human dignity would justify releasing older and seriously ill prisoners. He also examines the normative justifications which could limit the administration of the imprisonment of the elderly and seriously ill.

Khechumyan argues that factors such as a prisoner's age and health could alter the balance between the legitimate goals of punishment, rendering the continued imprisonment 'grossly disproportionate'. To address these issues, Articles 3 and 5 of the European Convention of Human Rights are extensively examined.

This book is a valuable resource for academics, researchers and policy-makers working in the fields of Criminal Justice, Human Rights Law, and Gerontology.

1 Human rights limits on continued imprisonment

Abstract

Deprivation of the right to liberty after conviction by a court of law is explicitly authorised in many international and regional human rights treaties and national Constitutions. Elderly people are not exempted from imprisonment as a punishment for a crime. However, cruel, inhuman, degrading or unusual punishment is almost universally prohibited. Although imprisonment after conviction by a competent court per se is not regarded as cruel, inhuman, degrading or unusual punishment, courts at both international and national levels have interpreted respective provisions as imposing some limits on administration of imprisonment. Different courts and tribunals have interpreted the prohibition of cruel, inhuman or degrading punishment as putting limits on the method and manner of administration of imprisonment. Furthermore, the same provision has been interpreted as putting limits on prison sentences of excessive length and requiring rigorous procedural safeguards in order to ensure compatibility of ultimate sentences, such as life imprisonment, with human rights. This chapter explores the above outlined human rights limits of imprisonment with reference to the jurisprudence of some national and supranational courts. It aims to highlight the relevant principles in order to explore their applicability to continued imprisonment of elderly and seriously ill prisoners.

Restricting the method and manner of the administration of imprisonment

The various approaches of different courts in interpreting the prohibition of cruel, inhuman, degrading or unusual punishment as putting limits on the method and manner of administration of imprisonment have been well researched and discussed in the literature.¹ What follows is a short outline of the approach of the European Court of Human Rights (ECtHR) and the US Supreme Court.

The European approach

The ECtHR, in particular, recognises that the forcible, but lawful, subjection of individuals to the demands of penal systems in most, if not in all, cases contains elements of humiliation. However, this inevitable element of humiliation is justified by the practical demands of the penal system and the nature of judicial punishment.² The ECtHR held that, in order for judicial punishment to be regarded as ‘degrading’ within the meaning of Article 3 of the European Convention on Human Rights (ECHR), ‘the humiliation or debasement must attain a particular level and in any event must be other than usual element of humiliation’ which is generally inherent in judicial punishment.³ The threshold of the level of humiliation or debasement that is required in being judicial in the scope of Article 3 is relative, depending ‘on all the circumstances of the case and, in particular, on the nature and context of the punishment itself and the manner and method of its execution’.⁴

With the development of case law on Article 3, the ECtHR has articulated particular situations which might push lawfully imposed punishment and treatment associated with it beyond the inevitable element of humiliation justified by the practical demands of the penal system and the nature of judicial punishment.⁵ In particular, the ECtHR has articulated that not securing proper conditions of detention, failing to secure the health and wellbeing of prisoners and subjecting them to distress or hardship beyond the practical demands of imprisonment would push the level of humiliation and debasement inherent in judicial punishment beyond its inevitable level.⁶ As a rule, the question whether or not in a particular case the situation went beyond the inevitable element of humiliation is assessed on the basis of specific incidents that occurred during deprivation of liberty or the cumulative effect of different conditions of imprisonment.⁷

Furthermore, in this regard the Court also discussed the subjective component of treatment or conditions to which the inmate was subjected. It held that:⁸

although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3.

There have been several cases before the ECtHR arguing that the continued imprisonment of applicants is degrading or inhuman in violation of Article 3 of the ECHR because of the impact of very old age or a serious medical condition on the prison experience.⁹ The ECtHR explicitly stated that the Convention contains no prohibition against the imprisonment of elderly persons, but also noted that ‘under certain circumstances the detention of an elderly person over a lengthy period might raise an issue under Article 3’.¹⁰ Subsequent case law on the subject demonstrates that this approach has become one of the general principles which ECtHR uses to assess relevant claims.¹¹ The Court pointed out that ‘regard is to be had to the particular circumstances of each specific case’.¹²

By contrast, the ECtHR has developed detailed rules for the assessment of compatibility with the continued imprisonment in cases of fatally or otherwise seriously ill prisoners. As the case law demonstrates, in both categories the ECtHR generally applies the same standard regardless of whether the illness is fatal in the short term or otherwise serious. The starting position of the ECtHR is that Article 3 of the ECHR cannot be interpreted as laying down a general obligation to release prisoners on the ground of ill-health.¹³ However, it imposes an obligation on the State to protect the health and wellbeing of prisoners by, inter alia, providing them with the necessary medical assistance.¹⁴ Moreover, it requires the State to ensure that conditions of detention are compatible with human dignity and that ‘the manner and method of execution of the measures imposed do not subject her/him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention’.¹⁵

Further development of the case law on the subject has brought the recognition on the part of the ECtHR that the health of a detainee is ‘among the factors to be taken into account in determining how a custodial sentence is to be served’.¹⁶ The ECtHR clearly stated that ‘Article 3 may require the release of a detainee only in exceptional cases and under certain conditions, where his or her health is absolutely incompatible with detention’.¹⁷ In cases where a prisoner suffers from a serious illness, the provision of necessary care is not enough to satisfy the requirements of Article 3. The authorities also need to consider, in view of the applicant’s state of health, whether or not she/he should continue to be detained.¹⁸ The ECtHR emphasised the importance of domestic legal mechanisms designated specifically to review the continued deprivation of liberty in view of serious illness for the protection of rights under Article 3.¹⁹

The approach of the US Supreme Court

In the US, the Supreme Court has also developed a considerable jurisprudence on the applicability of the Eighth Amendment (prohibition of cruel and unusual punishment) of the US Constitution in the context of imprisonment. In the case of Estelle v Gamble, Justice Marshall, writing for the majority, stated that the Eighth Amendment prohibition of cruel and unusual punishment also embodied ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency’.²⁰ According to the majority, punishments ‘which are incompatible with the evolving standards of decency that mark the progress of maturing society or involve unnecessary and wanton infliction of pain’ do not meet these standards and therefore violate the Eighth Amendment.²¹ Denial of appropriate medical care to prisoners could result in needless pain and suffering which is inconsistent with contemporary standards of decency and thus constitutes unnecessary and wanton infliction of pain prohibited by the Eighth Amendment. However, not all cases of medical mistreatment of prisoners would constitute a violation of the Eighth Amendment, but only those where mistreatment involved deliberate indifference to serious medical needs.²²

Apart from the medical mistreatment of prisoners, the Eighth Amendment litigation before the US Supreme Court involved cases concerning prison conditions. In the case Rhodes v Chapman,²³ relying on the doctrine of ‘evolving standards of decency that mark the progress of maturing society’, the Court held that conditions that re...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Tables of Cases
• Acknowledgements
• Foreword
• Introduction
• 1 Human rights limits on continued imprisonment
• 2 Extending the right of review to elderly and seriously ill prisoners
• 3 Substantive and procedural elements of review of continued imprisonment of elderly and seriously ill prisoners
• 4 Compliance with substantive and procedural requirements of the right to review under Article 3 ECHR: the case of the elderly and seriously ill Prisoners
• Conclusion
• Index