Prisoners - Legal Information Access Centre - NSW Government

iccpr
The main rights of relevance to prisoners contained in
the ICCPR are:
article 6
1. Every human being has the inherent right to life.
This right shall be protected by law. No one shall be
arbitrarily deprived of his life.
article 7
No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment. In particular,
no one shall be subjected without his free consent to
medical or scientific experimentation.
article 9(1)
1. Everyone has the right to liberty and security of
person. No one shall be subjected to arbitrary arrest
or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such
procedures as are established by law.
2. Anyone who is arrested shall be informed, at the
time of arrest, of the reasons for his arrest and shall
be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge
shall be brought promptly before a judge or other
officer authorised by law to exercise judicial power
and shall be entitled to trial within a reasonable time
or to release. It shall not be the general rule that
persons awaiting trial shall be detained in custody,
but release may be subject to guarantees to appear for
trial, at any other stage of the judicial proceedings,
and, should occasion arise, for execution of the
judgment.
4. Anyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings before
a court, in order that that court may decide without
delay on the lawfulness of his detention and order his
release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest
or detention shall have an enforceable right to
compensation.
Note that the ICCPR also contains a number of articles
of relevance to remand prisoners in particular as they
cover the right to a fair trial and due process rights
(eg Articles 14, 15, 17 and 26).
A leading commentator has suggested that ‘the state may
be considered to have a special duty towards persons
deprived of their liberty, such that failure to provide
them with food or medical treatment, or to prevent
suicide, may amount to a violation of article 6.’ 68
Similarly an issue under article 6 might be raised if ‘a
prisoner is killed by another prisoner in circumstances
indicating that officials were aware of the existence of a
risk and in a position to prevent the killing yet failed to
do so’. 69
sTAndArd minimum rules
The key provision for prisoners is article 10 of the ICCPR
and the Standard Minimum Rules for the Treatment of
Prisoners (SMRs). 70 Whereas article 10 is general, the
SMRs are detailed but they are not formally binding on
states, although they are used to determine the scope of
article 10. Gifford in a review of decisions by the United
Nations Human Rights Committee in relation to article
10 notes the following factors which have ‘consistently
contributed to a finding of violation’ including:
> overcrowding and solitary confinement;
> restrictions on contact with relatives or legal
representatives;
> inadequate opportunities to leave the cell, failure to
provide a mattress, inadequate sanitation, inadequate
ventilation, absence of natural light, inadequate food
and water, and lack of medical assistance or denial of
medical treatment. 71
The principles in the SMRs have been adopted in
Australia in the Standard Guidelines for Corrections in
Australia. Although not binding on Australian States
and Territories the Guidelines are to be used in drafting
prison rules. The following table sets out the principles
of general application elaborated upon by the SMRs.
article 10
1. All persons deprived of their liberty shall be treated
with humanity and with respect for the inherent
dignity of the human person …
3. The penitentiary system shall comprise treatment
of prisoners the essential aim of which shall be their
reformation and social rehabilitation.
68. Camille Giffard, ‘International Human Rights Law Applicable to Prisoners’ in Brown and Wilkie (eds) Prisoners as Citizens (2002) 184.
69. Giffard, as above.
70. Available in fulltext from the UNHCHR website: www.unhchr.ch/html/menu3/b/h_comp34.htm.
71. Giffard, as above 190.
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