NCJ Number
70348
Journal
LAW QUARTERLY REVIEW Volume: 95 Dated: (July 1979) Pages: 393-417
Date Published
1979
Length
25 pages
Annotation
The theory of state justification is examined in three different contexts: the European Convention on Human Rights, the German Prison Act, and English prison law.
Abstract
Cases regarding prisoner's rights have had an important effect on the jurisprudence of the European Convention. By 1968, 56 percent of the applications came from prisoners; in 1977 the proportion was still as high as 36 percent. A review of the cases shows a shift from inherent limitations on a prisoner's rights to state justification of restrictions on the basis of the exceptions named in the Convention (the margin of appreciation). The landmark decision in the Golder case (1976) rejected inherent limitations in favor of the margin of appreciation. In Germany, the Federal Constitutional Court stated that the fundamental rights of a prisoner are limited by the purpose served by the penalty of imprisonment. Also, Germany's Prison Act of 1976 rejected the doctrine in inherent limitations in the context of prisoners' rights. In England, the axiom of prison law is that all behavior that is not expressly allowed is prohibited. Restrictions on prisoner's access are considered in seven areas: arrest, remand, letters, visits, counsel, Members of Parliament, and the European Commission on Human Rights. The paper concludes that rules about prisoners' correspondence should be relaxed before reform is forced by prisoners appealing to the European Commission on Human Rights. Footnotes are included.