Positive Obligations to Ensure the Human Rights of Prisoners: Safety, Healthcare, Conjugal Visits and the Possibility of Founding a Family Under the ICCPR, the ECHR, the ACHR and the AfChHPR

PRISON POLICY AND PRISONERS’ RIGHTS. THE PROTECTION OF PRISONERS’ FUNDAMENTAL RIGHTS IN INTERNATIONAL AND DOMESTIC LAW, pp. 21-44, Peter J.P. Tak & Manon Jendly, eds., Wolf Legal Publishers, 2008

25 Pages Posted: 24 Apr 2012 Last revised: 15 Feb 2015

Date Written: 2008

Abstract

The main theme of this contribution concerns the state’s positive obligations to ensure the human rights of prisoners. Duties correlating to the rights to life, humane treatment, private and family life and the founding of a family are analysed and discussed. In particular I shall go into the duty to protect prisoners against killing and violence by other detainees, the duty to offer prisoners healthcare, and the duty to afford prisoners the possibility to enjoy conjugal visits and to beget children. To that this contribution examines the international and regional jurisprudence (including case law and official commends and interpretations) related to the world’s four most important general human rights treaties on civil and political rights, i.e.: the International Covenant on Civil and Political Rights (ICCPR, 1966), the European Convention on Human Rights (ECHR, 1950), the American Convention on Human Rights (ACHR, 1969), and the African Charter on Human and People’s Rights (AfChHPR, 1981). However, a brief account is given of some important principles of international law that have to be taken into consideration when assessing whether a restriction or denial of a certain human right is allowed in prison. These will be merged to a ‘minimum basic principle’ and used as a point of reference to elaborate on the jurisprudence on specific positive human rights obligations on States to ensure the rights of prisoners. A central question of this elaboration is: to what extent and how are these principles reflected in the jurisprudence on the ICCPR, the ECHR, the ACHR, and the AfChHPR in general and, more particularly, in view of the rights and obligations discussed?

Keywords: Prison, Human Rights, State obligations, Safety, Healthcare, Conjugal Visits, Law

Suggested Citation

van Kempen, Piet Hein, Positive Obligations to Ensure the Human Rights of Prisoners: Safety, Healthcare, Conjugal Visits and the Possibility of Founding a Family Under the ICCPR, the ECHR, the ACHR and the AfChHPR (2008). PRISON POLICY AND PRISONERS’ RIGHTS. THE PROTECTION OF PRISONERS’ FUNDAMENTAL RIGHTS IN INTERNATIONAL AND DOMESTIC LAW, pp. 21-44, Peter J.P. Tak & Manon Jendly, eds., Wolf Legal Publishers, 2008. Available at SSRN: https://ssrn.com/abstract=2045707

Piet Hein Van Kempen (Contact Author)

Radboud University Nijmegen ( email )

Faculty of Law
PO Box 9049
Nijmegen, 6500 KK
Netherlands

HOME PAGE: http://www.ru.nl/english/people/kempen-p-van/

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