Priority to Prisoner Rights: The Qualified Rights of Prisoners under the European Convention on Human Rights

Abstract

This thesis investigates the way in which the European Court of Human Rights conducts its reasoning process under the qualified rights in the context of imprisonment. The structure of the qualified rights, in that they can be justifiably interfered with by reference to competing legitimate aims and what is ‘necessary in a democratic society’, poses issues relating to the interpretation of rights and the role of balancing in the adjudication of rights claims. The status of prisoners as rights-bearers whose access to those rights is legitimately curtailed adds further complexity to the interplay between qualified rights and competing aims. The Convention was designed with the rights of free persons in mind. The application, therefore, of the Convention rights to the specific context of imprisonment requires that those rights are interpreted in such a way as to have practical effect while recognising that, necessarily, imprisonment imposes some restrictions on the enjoyment of Convention rights. Further, that the restrictions placed on rights in this context are imposed, to some extent, for reasons of punishment. This complex framework of rights protections and principles of punishment leaves a grey area in which the Court must decide whether Convention rights or competing aims, considered in light of the context of punishment, will take priority in a given case. This thesis proposes a modified framework for the interpretation of the qualified rights which takes account of the meaning of ‘effective protection’ and priority to rights in the specific context of imprisonment. It analyses the caselaw of the European Court against this framework, and suggests that a more clearly structured approach to each stage of the Court’s reasoning process would provide prisoners with greater protection of their Convention rights. Further, it argues that the Court should more fully embrace rehabilitation as an aim of punishment within its caselaw.