Protection of the Right to Life in Prison

Author:Margot Olesk

The right to life is essentially bound up with the darkest – and perhaps most disturbing – sides of prison: use of force, violent deaths and suicides, and the need for swift medical aid in the event of injury after violence or malady in prison. With regard to the right to life, the state applies two categories of obligations. Firstly, the state has negative obligations that can be drawn directly... (see full summary)

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 nd the right to life and human dignity, would 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
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. (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.

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