Protection of the Right to Life in Prison

• Author: Margot Olesk
• Pages: 110-123

Margot Olesk

Doctoral student

University of Tartu

Protection of the

Right to Life in Prison

1. Introduction

‘Show me your prisons and

I shall say in which society you live’

W. Churchill*1

Death – for centuries considered an independent punishment or inevitable consequence to the deplor-

able conditions of imprisonment. Nevertheless, as a consequence to the hegemony of humanitarianism

and ideological turnarounds in the latter half of the 20th century, the death penalty has been abolished in

Europe for three decades (in Estonia, for a little over half that time). Similarly, in the last 20 years, material

conditions of prisons have been under scrutiny by international organisations, such that civil rights, among

which we f‌i nd the right to life and human dignity, would f‌i nd vigorous protection.

Indisputably, the currently dynamic European human-rights protection mechanism – born as an epi-

logue to the Second World War – provides more solid protection to prisoners than any other regional or

international mechanism. European prison law with its crown jewels, the Convention for the Protection

of Human Rights and Fundamental Freedoms (hereinafter referred to as the ECHR)*2 and the European

Court of Human Rights (hereinafter ‘ECtHR’), provides a positive example globally. For example, Professor

Jonathan S. Simon, with the University of California at Berkeley, has noted that European prison law is for

America still a utopian model.*3

It is clear that European prison law was not born overnight. French philosopher Michel Foucault has

described how in the 19th century the spectacle of physical punishment by torture was replaced by a system

of punishment wherein the body of an individual was placed in a complex ‘system of constraints and priva-

tions, obligations and prohibitions’.*4 Hence, the body ceased to be the central axis of the punishment. The

f‌i rst apogee arrived near the beginning of the 21st century, with a change of paradigm in European prison

law – in talking about prisons, it is not the limitations of rights that are at the forefront of the discussion but,

rather, the protection of rights, and not only civil rights such as human dignity but others as well: second-

and third-generation human rights, such as a right to offspring, right to vote, or right to use the Internet.

1 W. Elkin. The English Penal System. Penguin 1957, p. 277.

2 The Convention for the Protection of Human Rights and Fundamental Freedoms, 4.11.1950, in force from 3.9.1953, CETS

005. In Estonia, from 13.3.1996. – RT II 1996, 11/12, 34; RT I 2005, 39, 308.

3 J.S. Simon. Punishment, Culture and Society (University of California at Berkeley, 26.4.2012). Available at https://itunes.

apple.com/us/itunes-u/legal-studies-160-001-spring/id496139226 (most recently accessed on 2.1.2014).

4 M. Foucault. Surveiller et punir. Naissance de la prison (Discipline and Punish: The Birth of the Prison). Gallimard 1975,

pp. 17–18.

110 JURIDICA INTERNATIONAL 23/2015

http://dx.doi.org/10.12697/JI.2015.23.12