Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
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Vol.39 N° 68
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ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
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Vol. 39, Nº 68 (Enero - Junio) 2021, 121-135
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
International standards on the rights
of convicted persons in places
of imprisonment
DOI: https://doi.org/10.46398/cuestpol.3968.06
Vadym Pidgorodynskyi *
Vadym Tykhonenko **
Dmytro Tsekhan ***
Petro Kaminskyi ****
Serhii Kravchenko *****
Abstract
The relationship between crime and punishment has never
been isolated. Under the inuence of socio-economic, political, and
cultural changes, metamorphoses of the institution of execution
of punishments took place; in particular, the rights of convicts
were liberalized. Therefore, it is necessary to analyze the historiography
of this phenomenon in terms of international standards, as well as the
peculiarities of their implementation. The work aims to characterize the
implementation of international standards on the rights of prisoners in
terms of historiography and legal regulation. The object of research is
the norms of international law. The subject of the study is social relations
that arise in the implementation of international standards on the rights
of convicts in prisons. The research methods were dialectical, systemic,
structural, formal-legal, historical-legal, methods of analysis, synthesis,
induction, and deduction. As a result, international standards for the rights
of prisoners serve as a model, an example of rational social relations in the
penitentiary environment. Key aspects that should be universally taken into
account by the governments of all countries are identied and described.
* Doctor of Legal Sciences, Assosiate Professor of Criminal law Department, Vice-rector for educational
and innovative development and economic activity of National University «Odesa Law Academy».
ORCID ID: https://orcid.org/0000-0001-8133-6486. Email: Vnp.odessa@gmail.com
** Ph. D., Associate Professor of Department of Forensics of National University «Odesa Law Academy».
ORCID ID: https://orcid.org/0000-0002-6687-1576. Email: Vadimtykhonenko@ukr.net
*** Ph. D., Associate Professor of Department of Criminology and Criminal Enforcement Law of National
University «Odesa Law Academy». ORCID ID: https://orcid.org/0000-0001-6503-6985. Email:
dimatsekhan@gmail.com
**** Ph.D. candidate of Criminal law Department of National University «Odesa Law Academy». ORCID
ID: https://orcid.org/0000-0001-7778-8279. Email: piligrimukrain@gmail.com
***** National University «Odesa Law Academy». ORCID ID: https://orcid.org/0000-0003-1453-4444.
Email: Murineus@gmail.com
122
Vadym Pidgorodynskyi, Vadym Tykhonenko, Dmytro Tsekhan, Petro Kaminskyi y Serhii
Kravchenko
International standards on the rights of convicted persons in places of imprisonment
Keywords: prisoner’s rights; international law; international standards
on prisoner’s rights; criminal-executive law; penitentiary
system.
Normas internacionales sobre los derechos de las
personas condenadas en lugares de prisión
Resumen
La relación entre crimen y castigo nunca ha sido aislada. Bajo la
inuencia de cambios socioeconómicos, políticos y culturales, se produjeron
metamorfosis de la institución de ejecución de los castigos; en particular,
se liberalizaron los derechos de los condenados. Por tanto, es necesario
analizar la historiografía de este fenómeno en términos de estándares
internacionales, así como las peculiaridades de su implementación. El
trabajo tiene como objetivo caracterizar la implementación de los estándares
internacionales sobre los derechos de los presos en términos de historiografía
y regulación legal. El objeto de la investigación son las normas del derecho
internacional. El tema del estudio son las relaciones sociales que surgen
en la implementación de estándares internacionales sobre los derechos
de los condenados en las cárceles. Los métodos de investigación fueron
dialéctico, sistémico, estructural, formal-legal, histórico-legal, métodos
de análisis, síntesis, inducción y deducción. Como resultado, las normas
internacionales sobre los derechos de los reclusos sirven como modelo, un
ejemplo de relaciones sociales racionales en el entorno penitenciario. Se
identican y describen aspectos clave que deberían ser tomados en cuenta
universalmente por los gobiernos de todos los países.
Palabras clave: derechos del recluso; derecho internacional; normas
internacionales sobre derechos del recluso; derecho
penal-ejecutivo; sistema penitenciario.
Introduction
The adoption of the Universal Declaration of Human Rights (hereinafter
– Declaration) by the United Nations (hereinafter – UN) General Assembly
at the Chaillot in Paris, on December 10, 1948, is the fundamental basis and
starting point for the institution of international standards for ensuring the
rights of prisoners. This international treaty states that all people are equal
before the law and have an equal right to judicial protection, protection
from discrimination and other unlawful encroachments, established the
principle of the presumption of innocence, and a number of other important
human rights and freedoms (Romanyuk and Chovgan, 2016).
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In compliance with this document, the UN General Assembly adopted
the International Covenant on Civil and Political Rights (1967) (hereinafter
– the Covenant) and the International Covenant on Economic, Social and
Cultural Rights in 1966, which entered into force in 1976. Art. 10 of the
Covenant regulates that the main purpose of serving a sentence of persons
sentenced to imprisonment is their correction and rehabilitation, as a result
of which they may not be subject to restrictions that go beyond those to
which they are sentenced by law (Romanyuk and Chovgan, 2016).
The above-mentioned international treaties laid the foundation for the
legal status of prisoners, regulating the basic principles of treatment of
convicts. For example, in accordance with Art. 5 of the Declaration and Art.
7 of the Covenant, no one shall be subjected to torture or to cruel, inhuman,
or degrading treatment or punishment. All prisoners also have the right to
humane treatment and respect, as required by Art. 10 of the Covenant.
In the context of our study, we must mention the cultural implication
of international standards in the analyzed area. To best illustrate it, let
us turn to the historiography of criticism and objections to the Universal
Declaration of Human Rights (1948). In 1948, Saudi Arabia abstained
from voting for the declaration, arguing that the treaty violated Sharia law.
Pakistan at one time disagreed, signing the document, as did Turkey, Egypt,
and Syria, which are currently the vast majority of Muslims (Langwith,
2008).
Evidence of a divided cultural perception of the declaration is that in
1982, Iran’s representative to the UN, Saeed Rayaye-Khorassani, said the
declaration was a “secular understanding of the Judeo-Christian tradition”
that ran counter to Sharia Muslims’ views on human rights. There were
also opinions about the bias of the international act in favor of Western
civilization (Hassan, 1995).
However, the prospect of using such cultural arguments is a matter of
concern, as they may call into question the very nature of human freedom
and choice, the protection of which is the goal of international treaties.
The purpose of the article is to study international standards for
ensuring the rights of criminals in places of deprivation of liberty and
identify their characteristic features in order to establish the specicity of
their implementation in national legislation. The article will cover the legal,
cultural, and historical aspects of the problem.
1. Methodology
For conducting this research, the following methods were used. The
dialectical method has been used to portray the development of the
institution of international standards on the rights of prisoners as a
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International standards on the rights of convicted persons in places of imprisonment
process of quantitative and qualitative change, as well as to overcome the
contradictions between past norms and the need to improve them.
Also, the systematic method made it possible to characterize the current
limits of permissible behavior in the eld of criminal executive law in
their relationship with the norms of other legal institutions, including
international and constitutional law.
The structural method has been useful for characterizing the construction
of regulations governing international standards for the treatment of
prisoners, as well as their division into structural units.
Moreover, the formal-legal method allowed the authors to analyze the
meaning of legal norms in the eld of international standards on the rights
of convicts in places of imprisonment, to interpret them in terms of formal
legal logic.
The method of deduction helps to study the relationship between changes
at the international level and their implementation in the penitentiary
system was traced.
In addition, using the historical-legal method, the genesis of the subject
of research was characterized, its historiography was described, and the
connection between historical events, which eventually led to the formation
of a modern institute of international standards for the rights of prisoners,
was depicted.
Besides, using the method of analysis, the constituent elements of legal
norms were studied, the points of intersection of historical events were
found, the meaning of historical processes, and the purpose of modern
legal regulation in terms of ensuring international standards on the rights
of convicts were characterized.
With the help of induction, the impact of negative phenomena in the
eld of execution of sentences on the adoption of international treaties
governing the standards of the rights of convicts in places of imprisonment
was studied.
The analysis of historical facts related to the international legal regulation
of the execution of sentences and treatment of convicts (prisoners) was
carried out, which served as a necessary basis for assessing and reassessing
the compliance of legislation with the standards of civilized civil society,
part of which is the penitentiary system, which respects human dignity,
rights, and freedoms.
The theoretical-legal basis of the studied phenomenon was also
considered and a description of the implementation of international
standards in places of imprisonment was given.
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2. Recent research and ndings
Considering that the article analyzes a certain number of international
normative legal acts, the authors decided to analyze the domestic doctrine
and the countries of the post-Soviet space.
At different times, the subject of research was reected in the works
of such scientists as Lysoded (2008, 2014), Martynov (2005), Pochanska
(2018), Stepanyuk and Yakovets (2007), Romanyuk and Chovgan (2016),
Stepanyuk and Yakovets (2008), Yatsyshyn (2010a, 2010b).
In his publications, Lysoded (2008, 2014) thoroughly examines the
correlation between national legislation and international standards of
execution of punishments. The conclusions imply a positive nature of the
changes and the very vector of development of penitentiary law.
Martynov (2005) devoted his attention to the study of the place of the
Universal Declaration of Human Rights in the history of the development of
international and national law. His works are characterized by an objective
description of historical events, their impact on the development of legal
regulation.
Morevoer, Pochanska (2018) gave a theoretical and legal substantiation
of international penitentiary standards, analyzed their concepts, features,
and functions.
In the guidelines for the penitentiary system, Romanyuk and Chovgan
(2016) objectively explored the history of the formation and essence of
international standards for the rights of prisoners. Moreover, the capacious
characteristic of each document of the researched sphere was given.
Furthermore, Ryabykh (2016) gave a legal description of the
implementation of international standards on the rights of prisoners. Thus,
the synthesized approach outlines the mechanism of action, the content of
legal norms, and international recommendations, including their reection
in national legislation.
In their scientic and practical commentary to the Criminal Executive
Code of Ukraine (2004), Stepanyuk and Yakovets (2007) draw parallels
between national law and international legal regulation of standards for
ensuring the rights of prisoners. Thus, they focus on Art. 1 of the Criminal
Executive Code of Ukraine, which distinguishes between the tasks and
purpose of criminal-executive legislation, which in some way resonates
with the European penitentiary rules.
In addition, Yatsyshyn (2010a, 2010b) paid attention to the question
of the genesis of standards for serving sentences and the rights of persons
sentenced to imprisonment both from the point of view of national law
and from the standpoint of international historiography. In his works, the
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Kravchenko
International standards on the rights of convicted persons in places of imprisonment
scientist thoroughly analyzed all known aspects of the studied phenomena,
outlined promising vectors of development.
Nevertheless, despite the presence of a large number of works devoted
to the rights of convicts in places of deprivation of liberty, the inuence of
culture, the historical component, the legal system has not been sufciently
studied. That is why the article is aimed at studying these aspects in more
detail.
3. Results of the study
The list of documents that regulate the rules of treatment of convicts
is larger than it may seem at rst glance. In particular, it includes more
than 30 items, most of which are acts of recommendation, which, however,
serve as a basis for the management of penitentiary institutions and their
staff in interactions with prisoners. Only taking into account the interests
of as many members of the human community as possible while adhering
to clear rules and principles of coexistence can lead to the development of a
full-edged society and state (Shyshka et al, 2020).
In 1957, the UN Economic and Social Council approved the Minimum
Standard Rules for the Treatment of Prisoners. The very idea of introducing
such a document belongs to the International Criminal and Penitentiary
Commission, which prepared a collection of rules that were approved by
the League of Nations in 1934. However, in 1951, this commission ceased
to exist and was replaced by the UN (Juja, 2009). Thus, Resolution 663
CI (XXIV) of 31 July 1957 approved the Minimum Standard Rules. They
reect the main ideas and principles that states must adhere to in carrying
out their penitentiary activities, as well as the minimum conditions to be
provided by the penitentiary system, correctional facilities, and their staff,
including the treatment of prisoners (Romanyuk and Chovgan, 2016).
Meanwhile, the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (1984) requires States parties to
recognize torture as a crime, regardless of the grounds or conditions under
which it is committed.
Continuing the theme of the work, it is worth paying attention to the
so-called regional acts of legal regulation of the rights of prisoners. In this
aspect, the branch of the championship is held by the Council of Europe – an
international regional organization of European states, established in 1949
under the inuence of the devastating effects of World War II. The goal of its
activity was to spread democracy, deepen cooperation between European
countries, and protect human rights and freedoms, the environment.
The Convention for the Protection of Human Rights and Fundamental
Freedoms (hereinafter – the Convention) is correctly considered to be the
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pearl of the Council of Europe law-making. It was signed by ten member
states of the Council of Europe in the Italian capital on November 4, 1950.
Both copies, in English and French, are recognized in the document as
equally authentic.
On September 3, 1953, the Convention entered into force after ratication
and deposit of 10 instruments by the signatories.
As a result of the Vienna Summit in 1993, it was decided to replace the
European Commission of Human Rights and the European Court of Human
Rights (hereinafter – ECHR), which were established after the entry into
force of the 1954 and 1959 Conventions, respectively. The purpose of these
bodies was to monitor the observance of the rights and freedoms guaranteed
by the Convention. Thus, to ensure these tasks, a new body was created –
the European Court of Human Rights, which replaced the previous two-
component conguration. The new body of the Council of Europe, based in
Strasbourg, France, began its work on 1 November 1998.
The rights and freedoms provided for in the Convention are aimed
at ensuring the most important aspects of a person’s life. In addition to
such important rights as the right to life, liberty, inviolability, freedom of
movement, freedom of speech, conscience, religion, etc., in the context of
the study, we should mention the rights guaranteed by the ECHR as the
right to a fair trial, prohibition of discrimination, torture, slavery and forced
labor, inadmissibility of punishment without law.
The basis of the general the principles of EU law are the priority of the
rights of the individual, enshrined in the European Convention, which
takes into account the constitutional traditions of European countries
(Kharytonov et al., 2019).
At the same time, the ECHR establishes the right of member states to
restrict rights and freedoms on various legitimate grounds, as explicitly
stated in the text of the document. However, under no circumstances can a
person’s right to life, the prohibition of torture, slavery, or the inadmissibility
of the retroactive effect of the law be violated.
On September 11, 1997, the Convention entered into force for Ukraine.
In this way, our state has committed itself to bring its legislation in line
with international standards. However, there were difculties, as in 1999
the Parliamentary Assembly of the Council of Europe almost terminated
Ukraine’s membership. However, after inspecting the situation on the
ground in October 1999, the parliamentary commissioners concluded that
there were no grounds for imposing such sanctions.
In terms of regional international standards, the European Penitentiary
Rules should also be mentioned. The Committee of Ministers of the Council
of Europe adopted a resolution in 1973 recommending that the governments
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Vadym Pidgorodynskyi, Vadym Tykhonenko, Dmytro Tsekhan, Petro Kaminskyi y Serhii
Kravchenko
International standards on the rights of convicted persons in places of imprisonment
of the member states of the Council of Europe be guided in drafting new
legislation and practice by the principles set out in the Standard Minimum
Rules for the Treatment of Prisoners (1957) and report to the Secretary of
the Council on the implementation and development of these principles.
Thus, on 12 February 1987, the European Penitentiary Rules were adopted,
consisting of 108 articles combining the Preamble, the substantive part,
and the explanatory note. In 2006, the code was updated (European
Penitentiary Rules, 2006).
The European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment, which entered into force in February
1989, was also adopted to comply with international standards on the
rights of prisoners. It is based on the 1984 Convention against Torture and
provides for the functioning of a specialized body, the European Committee
for the Prevention of Torture, which is responsible for prole monitoring
and control.
It is also worth mentioning that there are recommendations on the
treatment of prisoners adopted by international non-governmental
organizations such as Amnesty International (2020), the Howard League
for Penal Reform (2020), the International Criminal and Penitentiary
Foundation (2020), the Salvation Army and others (2020).
As for the theoretical basis of the study, it can be argued that in the
scientic community there is some consensus on the basic features of the
concept of international standards for convicts, despite the personal views
of scientists on this issue, which is quite natural for the research process.
Therefore, international standards of treatment of convicts (prisoners) to
imprisonment are proposed to be dened as a set of internationally accepted
relevant principles, conventions, recommendations and norms, standards
of organization of various spheres of activity of penitentiary institutions
(Oler et al, 2016).
Minimum standard rules for the treatment of prisoners dene the main
essence of punishment as imprisonment (Trubnykov and Shinkaryov,
2008).
Some researchers note that there should be no signicant difference
that can affect the perception of convicts of socialization inside and outside
the prison, as this may have negative consequences in the process of social
reintegration (Kolb et al, 2016).
The UN Standard Minimum Rules state that the management of
correctional facilities must be carried out rmly and decisively, however,
within the law and with only the necessary coercive measures. Emphasis
is also placed on the separate detention of prisoners, in respect of which
European penitentiary rules allow for derogations. UN General Assembly
Resolution 45/111 of 14 December 1990, “Basic Principles for the
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Treatment of Prisoners”, emphasizes the abolition of solitary connement
as a punishment and the restriction of its use (European Penitentiary
Regulations: Annex to Recommendation No R (2006)2).
International norms also pay attention to the organization of the life
of convicts. In this context, keeping convicts in solitary connement is
considered undesirable, and separate detention of different categories of
convicts, on the contrary, is approved as recommended (Analysis of the
compliance of the Criminal Enforcement Code of Ukraine with European
standards and recommendations of the European Committee for the
Prevention of Torture and Ill-Treatment, 2007). It is also noted that the
isolation of a convicted person should be used as a last resort when all other
measures do not help to correct his / her behavior.
A necessary condition for further re-socialization is to ensure that
the sentence is served as close as possible to the place of residence of the
convicted person or his family. The relevant recommendation is contained
in paragraph 17.1 of the European Prison Rules. Recommendation Rec
(2003) 23 of the Committee of Ministers of the Council of Europe also
states that “convicts should be placed with a high degree of probability in
prisons close to the places where their families live or in the surrounding
areas” (Key Council of Europe Conventions and Recommendations, n.d.).
Convicts have the right to regular visits under supervision, the right
to correspondence, to information from newspapers, magazines, local
penitentiary publications, radio, and other sources under the control of the
administration of the penitentiary institution (Trubnykov and Shynkaryov,
2008). European penitentiary rules emphasize the importance of
inseparable connection with the outside world as a condition for successful
re-education of convicts, their further social reintegration.
As for national legislation, according to domestic and foreign analysts,
the subjective rights of all convicts set out in Art. 7 and 8 of the CEC, to a
greater extent, meet international standards on this issue (Human Rights
in Ukraine. Information portal of the Kharkiv Human Rights group, 2007).
And although international acts do not dene the very concept of the legal
status of convicts, the objectives of respecting the subjective rights of these
persons, in particular, mentioned in paragraphs 56, 66 of the Minimum
Standard Rules for the Treatment of Prisoners, are fully compatible with
those approved by the Ukrainian penitentiary legislation (Stepanyuk, 2005;
Stepanyuk and Yakovets, 2007).
Is should be born in mind that according to the Criminal Executive
Code of Ukraine, convicts have the right to visit (Article 110), telephone
conversations without limiting their number under the control of the
administration (Article 110), receiving parcels (Article 112), correspondence
(Article 113) without restrictions, short trips outside the colonies (Article
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Kravchenko
International standards on the rights of convicted persons in places of imprisonment
111), receipt or purchase at their own expense of literature, stationery,
possession of not more than 10 copies of books or magazines and newspapers
in unlimited quantities (Article 109).
However, there is a view that the main difference between the
European and post-Soviet paradigms of the penitentiary system can be
described as an awareness of punishment, or more simply – as the degree
of its dehumanization. Thus, the unequivocal stigmatization of a person
sentenced to imprisonment and dehumanization, “impersonal” treatment
are still obstacles to effective reform of the penitentiary sector, because this
stereotype exists not only in the penitentiary environment but also at the
level of legal culture, the mentality of the whole society (Romanov, 2006).
Thus, international institutions reserve the right to state the concept
of standards of treatment of prisoners with the content of restrictions,
however, dening the limits of such intervention to respect the principles
of humanity and respect for human rights and freedoms.
Conclusion
Thus, in the process of bringing legislation into line with international
norms begins (which is currently taking place in many countries), the
legislator should consider the following aspects.
1. Concerning the genesis of the institute of international standards
on the rights of persons sentenced to imprisonment it should be
sum up, that International standards for the rights of prisoners date
back to the adoption of the Universal Declaration of Human Rights
in 1948. The rapid development of this legal institution occurred
in the second half of the 20th century. The main documents were
adopted mainly under the auspices of the UN and the Council of
Europe. The main international legal instruments that contain
standards on the rights of prisoners are: the Universal Declaration
of Human Rights, the International Covenant on Civil and Political
Rights, the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Minimum Standard Rules for
the Treatment of Prisoners, Convention for the Protection of Human
Rights and Fundamental Freedoms, European Penitentiary Rules.
2. Regarding the theoretical-legal aspects of international standards on
the rights of prisoners it should be stated that the standard rules for the
treatment of prisoners adopted by the United Nations and the Council
of Europe are not intended to create conditions under which they will
be binding on other countries against their will. Rather, they serve as
a model, an example of rational social relations in the penitentiary
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environment. However, signed international legal treaties are binding
based on their ratication. International standards for the treatment
of prisoners constitute an appropriate institution of legal regulation,
which includes ideas, norms, principles, and recommendations,
which are designed to ensure respect for human rights, respect for
human dignity, rights and freedoms in prison. Appropriate desirable
methods of treatment of convicts, conditions of their detention
and management of penitentiary institutions serve as a guide in
formulating the corresponding acts of national legislation. Respect
for human dignity and human rights is a fundamental principle that
unites all such documents, both mandatory and recommendatory.
3. Regarding the implementation of international standards in places
of imprisonment into legislation of different countries it should
be concluded that the peculiarities of the implementation have
various aspects such as ensuring appropriate conditions for serving
a sentence, the right to correspondence, medical care and services,
communication, work, social security, humane treatment, respect
for one’s dignity, rights, and freedoms. The goal pursued by the
implementation of the rules of treatment and detention of prisoners
can be described as the successful re-socialization of prisoners.
Respect for the dignity, rights and freedoms of prisoners is the
guiding principle for this.
Thus, in carrying out their teleological function, the limits of permissible
behavior to prisoners approved by the international community are aimed
at:
• establishing the minimum necessary principles for the treatment of
prisoners, the conditions of their detention, and the management of
the penitentiary system.
• encouraging the prison administration to take action under modern
principles of humanity and justice.
• improving the professional skills of correctional ofcers.
• establishing of objective criteria for assessing the state of observance
of human rights in penitentiary institutions, real compliance with
the standards of detention of prisoners in places of imprisonment.
Thus, these key aspects must be taken into account by the legislatures of
different countries, while simultaneously analyzing the absence of cultural
and historical contradictions in a particular country.
132
Vadym Pidgorodynskyi, Vadym Tykhonenko, Dmytro Tsekhan, Petro Kaminskyi y Serhii
Kravchenko
International standards on the rights of convicted persons in places of imprisonment
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ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
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