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Af advokat Claus Bonnez, formand for KRIM
Den 21. oktober 2007 Forfatteren var rådgivende ekspert for Europarådet i forbindelse med tilblivelsen af de nye fængselsregler. Han indleder med at fortælle, at Europarådets
komite for forebyggelse af tortur (CPT) gennem sine besøg i
medlemslandenes fængsler og arresthuse, hvor CPT påtaler forhold i
fængslerne, som CPT finder uhensigtsmæssige, efterhånden er blevet
et væsentligt bidrag for udviklingen inden for
straffuldbyrdelsesområdet i hele Europa. Forfatteren peger endvidere
på den omstændighed, at Den europæiske menneskerettighedsdomstol (EMD)
gennem de seneste år i stigende grad har fundet, at fangebehandling,
der har været genstand for sager ved domstolen, er anset for at
krænke konventionsbestemmelserne (navnlig artikel 3 og artikel 8 i
EMRK). Opmærksomheden skal særligt henledes på bemærkningen om, at
Den europæiske Menneskerettighedsdomstol (EMD) i stigende grad
henviser til ("increasingly refers to") CPTs vurderinger samt
De europæiske Fængselsregler i dens afgørelser. |
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"....: The second factor has been the
jurisprudence of the European Court of Human Rights. The European Court, together initially with the European Commission on Human Rights, is undoubtedly the world’s premier tribunal giving binding interpretations of international human rights standards. Large numbers of detainees and prisoners of all kinds have long turned to it for assistance. Initially, however, its reactions to these requests were mixed. Access to lawyers and fair disciplinary procedures were areas in which the Court was prepared to recognise Convention rights. The impact of these decisions was felt in the United Kingdom in particular where it was a driving force for prison law reform from the mid 1970s onwards. As late as 2000, however, Steven Livingstone, a late and much lamented colleague from Northern Ireland, could still conclude in his overview of prisoners’ rights in the context of the European Convention on Human Rights that procedural compliance with Convention standards had been more important to the Court than how prisoners were in fact treated. In his view, in areas such as the prison the Court in Strasbourg had done little more than legitimise the practice in most States conditions. This has changed dramatically in recent years: In the evocatively named case of Kalashnikov v. Russia (ECHR (2003)) the Court recognised for the fi rst time that overcrowding alone could create prison conditions that constituted inhuman and degrading treatment that contravened Article 3 of the European Convention of Human Rights. Other conditions of imprisonment have also been found to contravene the provisions of the Convention: it is now recognised, since the case of Van der Ven v. The Netherlands (ECHR (2003)), that the frequency and method of body searching can also amount to a violation of Article 3. C: Other Convention rights have also been applied in prison matters by the Court. The protection of family life in Article 8 of the Convention was used by the European Court of Human Rights in Messina v. Italy (ECHR (2000)) to fi nd that a regime that greatly restricted visits and any meaningful contact during them could violate the Convention unless there were clear justifi cations for such restrictions. In all the Court is now squarely involved in deciding on substantive prisoners’ rights. In its decisions it increasingly refers to both the existing European Prison Rules and the findings of the CPT. Like the CPT, its interpretations are being underpinned by what human rights lawyers call evolving standards of decency. All Europeans are bound to take note of these standards, in particular again the authors of penological recommendations and rules. The growing number of prisoners’ rights cases comes from both old and new member states of the Council of Europe, but it is clear that the accession of many new member states in Central and Eastern Europe is a third factor infl uencing the way in which European prison standards are developing. There are several reasons for this. New member states often have much higher imprisonment rates than old member states; this is coupled to the fact that they often have smaller per capita incomes and less state expenditure per citizen, which makes it harder for them to conform to European prison standards and rules. More specifi cally, many of them have only recently abolished the death penalty and have for the fi rst time to deal with large numbers of prisoners serving life sentences: conversely there is also a particular need for forms of conditional release to reduce the over-reliance on imprisonment. It should be recognised that the traffi c in new ideas is not only from West to East. For example, when it comes to intimate visits between prisoners and their partners, the Eastern European custom of allowing 72 hours or more for such visits is far more acceptable than the brief ‘conjugal visits’ customary in some Western countries, which can be humiliating for both the prisoner and the partner. |
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Til støtte for, at Den europæiske europæiske Menneskerettighedsdomstol i stigende grad citerer de europæiske fængselsregler i sine afgørelser, kan nævnes afgørelsen "Mathew v. Netherlands" af 15. februar 2006, § 126 (app.-no. 24919/03). "Modarca v. Moldova" af 10. maj 2007 er et lignende eksempel på, at reglerne citeres i EMDs afgørelser. Se afgørelsens §40. Sidstnævnte afgørelse har app.-no. 14437/05. |
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