CAUSES OF VIOLATING PRISONERSʼ RIGHT TO A DECENT LIFE. ROMANIA IN THE EUROPEAN CONTEXT

Available online at www.sserr.ro Social Sciences and Education Research Review ISSN 2393–1264 ISSN–L 2392–9863 (6) 2 216-243 (2019) CAUSES OF VIOLATING PRISONERSʼ RIGHT TO A DECENT LIFE. ROMANIA IN THE EUROPEAN CONTEXT2 Simona MIHAIU3 Scientific Researcher III, Institute of Sociolgy, Romanian Academy Abstract This paper presents a part of the results of a research project named “Prisoners’ Rights. Romania in the European Context”, conducted at the Institute of Sociology of the Romanian Academy, between November 2015 and September 2017. Given the novelty of our study for Romania, we have considered an exploratory data analysis as a feasible methodology, able to objectively highlight and model our findings. Based on the perception of the sociological inquiry respondents (N = 557), the main causes of the violation of their right to a decent life in penitentiary were identified to be overcrowding, disinterest on the part of the state and old infrastructure of penitentiaries. From a statistical point of view, the Pearson’s chi square test indicated significant or highly significant associations between most of the causes of the breaching the prisoners’ right to decent living. 2 This work was supported by a grant of the Romanian Ministry of Education and Research, CNCS-UEFISCDI, project number PNII-RU-TE-2014-4-2967 3 Institute of Sociology, Romanian Academy, Calea 13 Septembrie Street, no. 13, Bucharest, Romania. E-mail: 215 Keywords: prisonersʼ rights, decent life, penitentiary, European standards, penal policies Introduction After the Second World War, a strong-minded effort was made to establish a new legal order that would guarantee fundamental human rights and liberties. Likewise, taking into account the atrocities committed against prisoners during the Second World War, a considerable number of international legal instruments were created and adopted to protect and guarantee human rights and human dignity of those who are deprived of their liberty. Thus, the Universal Declaration of Human Rights (UDHR) recognized human dignity (Art.1) and cast off torture and cruel, inhuman or degrading treatment or punishment (Art.5). This ordinance was echoed in similar prohibitions in worldwide human rights agreements 4 (Van Zyl Smit and Snacken, 2009; Gottschalk, 2006; De Beco, 2005; Livingstone, 2000; Starmer, 1999). For instance, in the Basic Principles for the Treatment of Prisoners (BPTP), it is stipulated that “all prisoners shall be treated with the respect due to their inherent dignity and value as human beings” (Princ. 1). Similarly, in Body of Principles for the Protection of All Persons under 4 In Art. 3 of the European Convention of Human Rights and subsequently in Art. 5 of the American Convention on Human Rights and Art. 3 of the African Charter on Human and Peoples’ Rights; see Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms 4 November 1950 CETS 005; Organization of American States American Convention on Human Rights 22 November 1969 OAS Treaty Series No 36; Organization of African Unity (African Union) African Charter on Human and Peoples’ Rights adopted 27 June 1981 and entered into force 21 October 1986 OAU Doc CAB/LEG/67/3 rev. 5. 216 Any Form of Detention or Imprisonment (BPP) it is specified that “all persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person” (Princ. 1). This body of law and policy, the rights it embodies, as well as the elaborate model instruments setting out minimum standards and prohibitions applicable to prisoners and prison conditions, represent a fundamental international commitment towards recognising that prisoners should not be degraded, but treated with dignity and mercy. Consequently, both European and Romanian penal legislation states the right of all prisoners to personal dignity and, respectively, to decent life in penitentiary. That is why, European Prison Rules (EPR), which are the most suggestive and comprehensive for EU states, stipulate that “all persons deprived of their liberty shall be treated with respect for their human rights” (Princ. 1). As far as Romania is concerned, the supreme law of the country, namely the Constitution, adopted in 1991 and republished in 2003, provides a general frame for observing human rights and liberties and, implicitly, the prisoners’ right to decent living. For example, it legislates that “the right to life, as well as the right to physical and mental integrity of a person, are guaranteed” (Art. 22, Pt. 1), also stipulating that “no one may be subjected to torture or to any kind of inhuman or degrading punishment or treatment” (Art. 22, Pt. 2). In its turn, the Romanian Civil Code (2009) ensures democratic practice of human rights in general and, consequently, of detainees, by mentioning that “any person has the right to respect for their dignity” (Art.72, pt.1). More specifically for the rights of prisoners, Law No. 254/2013 on the execution of custodial sentences and the measures ordered by judicial authorities in the course of criminal proceedings, makes reference to the fact that “privative of liberty punishments and measures are to be executed in conditions that ensure respect for human dignity” (Art. 4) and that “it is forbidden for any person executing a punishment or another privative of liberty measure to be subjected to torture, 217 inhuman or degrading treatment, or any other kind of ill-treatment” (Art. 5, pt. 1). However, the application in practice of specific instruments falls far short in many - perhaps most - states and, in spite of the development of this international body of law, prisoners remain a vulnerable population, and as such, are easy targets for continued human rights abuses (Drenkhahn et al., 2014; Crétenot, 2013; Kaufmann et al., 2011; Griffiths and Murdoch, 2009). Regarding the European detention system, one of the most relevant examples of poor implementation of legislation is overcrowding. As shown in the latest Annual Penal Statistics of the Council of Europe (SPACE), “on 1st September 2015, European prisons were at the top of their capacity, holding, on average, almost 92 inmates per 100 places. In particular, 29% of the Prison Administrations were experiencing overcrowding” (Aebi et al., 2016, p. 3). Unfortunately, Romania is not an exception. Pursuant to the official data of National Administration of Penitentiaries (NAP), at 29.03.2016, the occupancy index calculated to the minimum space required by the European and, implicitly, national standards (i.e., 4 m2/prisoner) was 149%. In its jurisprudence, the European Court of Human Rights (ECHR) notes that the severe lack of space in detention rooms is an important factor to be considered when appreciating the degrading and inhumane character of the treatment of prisoners, an aspect that runs counter to their right to decent living (see Chiriac v. Romania, (...truncated)