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...