1
A Duty to ProtectPrisoners Rights to Health
in International Human Rights Law
Rick Lines, MA Irish Penal Reform Trust Irish
Centre for Human Rights International Prisoner
Health Conference Tallinn, Estonia 20 June 2006
2
Thanks

• Prof. William A. Schabas
• Dr. Kathleen Cavanaugh
• Irish Centre for Human Rights

3

• The late Act for Preserving the Health of
  Prisoners requires that an experienced Surgeon or
  Apothecary be appointed to every gaol a man of
  repute in his profession.
• His business is, in the first place, to order the
  immediate removal of the sick, to the infirmary
  and see that they have proper bedding and
  attendance. Their irons should be taken off and
  they should have, not only medicines, but also
  diet suitable to their condition. He must
  diligently and daily visit them himself not
  leaving them to journeymen and apprentices.
• He should constantly inculcate the necessity of
  cleanliness and fresh air and the danger of
  crowding prisoners together and he should
  recommend, what he cannot enforce. I need not
  add, that according to the Act, he must report to
  the justices at each quarter-sessions, the state
  of health of the prisoners under his care.
• John Howard
• The State of Prisons in England and Wales
• 4th edition, 1777

4

• The late Act for Preserving the Health of
  Prisoners requires that an experienced Surgeon or
  Apothecary be appointed to every gaol a man of
  repute in his profession.
• His business is, in the first place, to order the
  immediate removal of the sick, to the infirmary
  and see that they have proper bedding and
  attendance. Their irons should be taken off and
  they should have, not only medicines, but also
  diet suitable to their condition. He must
  diligently and daily visit them himself not
  leaving them to journeymen and apprentices.
• He should constantly inculcate the necessity of
  cleanliness and fresh air and the danger of
  crowding prisoners together and he should
  recommend, what he cannot enforce. I need not
  add, that according to the act, he must report to
  the justices at each quarter-sessions, the state
  of health of the prisoners under his care.
• John Howard
• The State of Prisons in England and Wales
• 4th edition, 1777

5

• The late Act for Preserving the Health of
  Prisoners requires that an experienced Surgeon or
  Apothecary be appointed to every gaol a man of
  repute in his profession.
• His business is, in the first place, to order the
  immediate removal of the sick, to the infirmary
  and see that they have proper bedding and
  attendance. Their irons should be taken off and
  they should have, not only medicines, but also
  diet suitable to their condition. He must
  diligently and daily visit them himself not
  leaving them to journeymen and apprentices.
• He should constantly inculcate the necessity of
  cleanliness and fresh air and the danger of
  crowding prisoners together and he should
  recommend, what he cannot enforce. I need not
  add, that according to the act, he must report to
  the justices at each quarter-sessions, the state
  of health of the prisoners under his care.
• John Howard
• The State of Prisons in England and Wales
• 4th edition, 1777

6

• The late Act for Preserving the Health of
  Prisoners requires that an experienced Surgeon or
  Apothecary be appointed to every gaol a man of
  repute in his profession.
• His business is, in the first place, to order the
  immediate removal of the sick, to the infirmary
  and see that they have proper bedding and
  attendance. Their irons should be taken off and
  they should have, not only medicines, but also
  diet suitable to their condition. He must
  diligently and daily visit them himself not
  leaving them to journeymen and apprentices.
• He should constantly inculcate the necessity of
  cleanliness and fresh air and the danger of
  crowding prisoners together and he should
  recommend, what he cannot enforce. I need not
  add, that according to the act, he must report to
  the justices at each quarter-sessions, the state
  of health of the prisoners under his care.
• John Howard
• The State of Prisons in England and Wales
• 4th edition, 1777

7

• The late Act for Preserving the Health of
  Prisoners requires that an experienced Surgeon or
  Apothecary be appointed to every gaol a man of
  repute in his profession.
• His business is, in the first place, to order the
  immediate removal of the sick, to the infirmary
  and see that they have proper bedding and
  attendance. Their irons should be taken off and
  they should have, not only medicines, but also
  diet suitable to their condition. He must
  diligently and daily visit them himself not
  leaving them to journeymen and apprentices.
• He should constantly inculcate the necessity of
  cleanliness and fresh air and the danger of
  crowding prisoners together and he should
  recommend, what he cannot enforce. I need not
  add, that according to the act, he must report to
  the justices at each quarter-sessions, the state
  of health of the prisoners under his care.
• John Howard
• The State of Prisons in England and Wales
• 4th edition, 1777

8

• The late Act for Preserving the Health of
  Prisoners requires that an experienced Surgeon or
  Apothecary be appointed to every gaol a man of
  repute in his profession.
• His business is, in the first place, to order the
  immediate removal of the sick, to the infirmary
  and see that they have proper bedding and
  attendance. Their irons should be taken off and
  they should have, not only medicines, but also
  diet suitable to their condition. He must
  diligently and daily visit them himself not
  leaving them to journeymen and apprentices.
• He should constantly inculcate the necessity of
  cleanliness and fresh air and the DANGER of
  crowding prisoners together and he should
  recommend, what he cannot enforce. I need not
  add, that according to the act, he must report to
  the justices at each quarter-sessions, the state
  of health of the prisoners under his care.
• John Howard
• The State of Prisons in England and Wales
• 4th edition, 1777

9

• The late Act for Preserving the Health of
  Prisoners requires that an experienced Surgeon or
  Apothecary be appointed to every gaol a man of
  repute in his profession.
• His business is, in the first place, to order the
  immediate removal of the sick, to the infirmary
  and see that they have proper bedding and
  attendance. Their irons should be taken off and
  they should have, not only medicines, but also
  diet suitable to their condition. He must
  diligently and daily visit them himself not
  leaving them to journeymen and apprentices.
• He should constantly inculcate the necessity of
  cleanliness and fresh air and the danger of
  crowding prisoners together and he should
  recommend, what he cannot enforce. I need not
  add, that according to the act, he must report to
  the justices at each quarter-sessions, the state
  of health of the prisoners under his care.
• John Howard
• The State of Prisons in England and Wales
• 4th edition, 1777

10

• The late Act for Preserving the Health of
  Prisoners requires that an experienced Surgeon or
  Apothecary be appointed to every gaol a man of
  repute in his profession.
• His business is, in the first place, to order the
  immediate removal of the sick, to the infirmary
  and see that they have proper bedding and
  attendance. Their irons should be taken off and
  they should have, not only medicines, but also
  diet suitable to their condition. He must
  diligently and daily visit them himself not
  leaving them to journeymen and apprentices.
• He should constantly inculcate the necessity of
  cleanliness and fresh air and the danger of
  crowding prisoners together and he should
  recommend, what he cannot enforce. I need not
  add, that according to the act, he must report to
  the justices at each quarter-sessions, the state
  of health of the prisoners under his care.
• John Howard
• The State of Prisons in England and Wales
• 4th edition, 1777

11
Context of the Right to Health in Prisons

• Universal human rights
• Rights of persons deprived of liberty
• Physical and mental health
• Environmental health
• Rights of individuals
• Obligations of States

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International Human Rights Law

• United Nations System
• International Covenant on Economic, Social and
  Cultural Rights
• Committee on Economic, Social and Cultural Rights
• Convention on the Elimination of All Forms of
  Discrimination against Women
• Convention on the Rights of the Child
• International Covenant on Civil and Political
  Rights
• Human Rights Committee
• European System
• European Convention on Human Rights
• European Court of Human Rights
• African System
• African Charter on Human and Peoples Rights
• African Commission on Human and Peoples Rights
• Inter-American System
• American Declaration of the Rights and Duties of
  Man
• Inter-American Commission on Human Rights
• American Convention on Human Rights
• Inter-American Court of Human Rights

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Constitution of the World Health Organization
(1946)

• The enjoyment of the highest attainable
  standard of health is one of the fundamental
  rights of every human being without distinction
  of race, religion, political belief, economic or
  social condition.

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The Right to Health The UN Human Rights System

• Covenant on Economic, Social and Cultural Rights
• Article 12 the right of everyone to the
  enjoyment of the highest attainable standard of
  physical and mental health
• Convention on the Elimination of All Forms of
  Discrimination against Women
• Article 12 take all appropriate measures to
  eliminate discrimination against women in the
  field of health care
• Convention on the Rights of the Child
• Article 24 the right of the child to the
  enjoyment of the highest attainable standard of
  health and to facilities for the treatment of
  illness and rehabilitation of health.

15
The Right to Health Regional Human Rights
Systems

• African Charter
• Article 16 the right to enjoy the best
  attainable state of physical and mental health
• American Declaration
• Article XI the right to the preservation of
  his health through sanitary and social measures
  relating to food, clothing, housing and medical
  care, to the extent permitted by public and
  community resources
• Optional Protocol of the American Convention
• Article 10 the right to health, understood to
  mean the enjoyment of the highest level of
  physical, mental and social well-being.
• European Convention
• No explicit right to health
• Right to health guaranteed instead in the
  European Social Charter

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Interpreting the right to health for prisoners

• UN Human Rights Committee
• General Comment No. 21 (1994)
• Persons deprived of their liberty may not be
• subjected to any hardship or constraint other
  than that resulting from the deprivation of
  liberty respect for the dignity of such persons
  must be guaranteed under the same conditions as
  for that of free persons. Persons deprived of
  their liberty enjoy all the rights set forth in
  the Covenant, subject to the restrictions that
  are unavoidable in a closed environment.
  emphasis added

17
Interpreting the right to health for prisoners

• UN Committee on
• Economic, Social, and Cultural Rights
• General Comment No. 14 (2000)
• States are under the obligation to respect the
  right to health by, inter alia, refraining from
  denying or limiting equal access for all persons,
  including prisoners or detaineesto preventive,
  curative and palliative health services
  boldface added

18
The Prohibition of Inhuman or Degrading Treatment
in International Human Rights Law

• International Covenant on Civil and Political
  Rights
• Articles 7 and 10
• European Convention
• Article 3
• African Charter
• Article 5
• Inter-American Convention
• Article 5
• American Declaration
• Article 25

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Obligations Imposed upon States

1. Negative Obligations obligation to refrain from
   inflicting harm on persons in detention (usually
   applied to torture, beatings, etc.)
2. Positive Obligations obligation to protect the
   well-being of people in detention

20
Positive Obligations on States in International
Law

• UN Human Rights Committee Article 10 of the
  ICCPR imposes upon States parties a positive
  obligation towards persons who are particularly
  vulnerable because of their status as persons
  deprived of their liberty.
• African Commission on Human Rights obligation
  to guarantee theright to the respect of his
  dignity and freedom from inhuman and degrading
  treatment under Article 5.
• Inter-American Court of Human Rights the State
  must guarantee to persons derprived of liberty
  the right to life and to humane
  treatment.Since the State is the institution
  responsible for detention establishments, it is
  the guarantor of these rights of the prisoners.

21
The positive obligation to protect health in
the European Convention

• Article 3 imposes upon States
• a duty to protect the well-being of people in
  detention Keenan v UK (2001)
• a positive obligation to protect the physical
  well-being of persons deprived of their liberty
  Hurtado v Switzerland (1994)
• an obligation to take the practical preventive
  measures necessary to protect the physical
  integrity and the health of persons who have been
  deprived of their liberty Pantea v Romania
  (2003)
• an obligation to do everything that could
  reasonably be expectedto prevent the
  occurrence of a definite and immediate risk to a
  prisoners physical integrity, of which the
  authorities knew or should have known Pantea v
  Romania (2003)

22
The positive obligation to protect health in
the European Convention

• States obligations apply regardless of the
  conduct of the prisoner, even if that conduct is
  illegal McFeeley v UK (1981), Chahal v UK
  (1996), Kudla v Poland (2000), Novoselov v Russia
  (2005)
• The duty to protect the physical integrity of
  people deprived of liberty includes the
  obligation to provide them with health care
  Hurtado v Switzerland (1994), Kudla v Poland
  (2000)
• States positive obligations are increased in
  cases where the person is deemed especially
  vulnerable (i.e, mental illness, physical
  disability) Price v UK (2001), Keenan v UK
  (2001), Pantea v Romania (2003)

23
European Committee for thePrevention of Torture
(1993)

• An inadequate level of health care can lead
  rapidly to situations falling within
  the scope of the term inhuman and
  degrading treatment.

24

• The failure to provide adequate medical care to
  persons in detention
• has been found to constitute
• inhuman or degrading treatment
• in all international human rights systems.

25
Environmental Health in Prisons

• The right to a healthy environment is explicitly
  articulated in several international human rights
  treaties
• International Covenant on Economic, Social and
  Cultural Rights
• Article 12(2)(c) The improvement of all
  aspects of environmental and industrial hygiene
• Article 11(1) the right of everyone to an
  adequate standard of living..including adequate
  food, clothing and housing, and to the continuous
  improvement of living conditions.
• UN Convention on the Rights of the Child
• Article 24(2)(c) the provision of adequate
  nutritious foods and clean drinking-water, taking
  into consideration the dangers and risks of
  environmental pollution
• American Declaration on the Rights and Duties of
  Man
• Article XI the right to the preservation of
  his health through sanitary and social measures
  relating to food, clothing, housing
• Optional Protocol of the American Convention on
  Human Rights
• Article 11 the right to live in a healthy
  environment

26
Environmental Health in Prisons

• UN Committee on
• Economic, Social, and Cultural Rights
• General Comment No. 14 (2000)
• the right to health embraces a wide range of
  socio-economic factors that promote conditions in
  which people can lead a healthy life, and extends
  to the underlying determinants of health, such as
  food and nutrition, housing, access to safe and
  potable water and adequate sanitation, safe and
  healthy working conditions, and a healthy
  environment.
• emphasis added

27
Environmental Health in Prisons

• Consensus among all four human rights systems
  that the following environmental factors in
  prisons contribute to conditions that constitute
  inhuman or degrading treatment, and therefore
  violate international law
• Overcrowding
• Inadequate toilet facilites
• Inadequate cleanliness and hygeine
• Lack of natural light or proper ventilation
• Poor quality or inadequate diet

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Advocating for prisoners right to health

• People in prison have the same right to health
  as people outside, and the lives and health of
  people in prison are connected to those of people
  outside prison in many ways. If we protect
  them, we also protect our broader communities.
• Dublin Declaration on HIV/AIDS in Prisons
• in Europe and Central Asia
• February 2004

Kamiti Prison Nairobi, Kenya - 2005
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Contact Information

• Rick Lines
• rlines_at_iprt.ie
• Irish Penal Reform Trust
• www.iprt.ie
• Irish Centre for Human Rights
• www.nuigalway.ie/human_rights