Summary:
Prison is the most organized form of collective living, cut off from the rest of the society, while within it strong authoritarian relations develop. As a counterweight to the above indisputable finding, the recognition and protection of the rights of prisoners is raised, both through their imprinting in institutional texts and the provision of protection institutions. The mechanism for protecting the rights of inmates though, both substantive and procedural, is another area to be explored. Prison is a real condition for exercising the rights of incarcerated citizens – governed, so any restrictions or conflicts of these rights should be subject to the same criteria and the same weighting techniques. The detainee is a bearer of the rights granted to him, but he exercises them within the functional framework in which he is located, as a result of which they are often subject to excessive restrictions that even lead to the abolition of their core. The power relations that develop in penitentiaries are fertile ground for the creation of a practice of abuse and arbitrariness. As underlined by the Hellenic Union for Human Rights the "political choice of encirclement of the prison, … created conditions for the flourishing of arbitrariness, corruption and of course the violation of human rights". The aim, then, that a rule of law is called to achieve is the existence of penitentiary institutions receptive to control.
Emphasizing that the cradle of the European Convention on Human Rights, concluded on 4 November 1950, is symbolically located, not in Rome, but in every place where women, men and children are deprived of their liberty, tortured and murdered, during World War II, A. Spielmann, a former judge at the European Court of Human Rights, regretted that the Convention's proponents had failed to provide in this instrument a special provision concerning the treatment of prisoners. In view of the fact that no additional Protocol to the Convention came to fill this important legal gap, it becomes necessary to emphasize the enormous evolution of the protection of rights, due to the Strasbourg Court. This study seeks to show that the primary gaps in the text of the European Convention - which, apart from Article 5 on the right to liberty and security, do not include any provision specifically devoted to the rights of prisoners - are supplemented by the case law of the European Court of Justice of Human Rights
and traces the regulatory power of the European judge, as the European Court of Justice is the source of the creation of European rules for the protection of the rights of prisoners. The case law of the European Court of Justice, which has devoted a third of its cases to disputes concerning prisoners, is one of the main factors in the recognition and harmonization of the rights of prisoners in European countries. Through a perhaps many times bold interpretation of the rights enshrined in the European Convention, the European Court of Human Rights has, in fact, managed to shape a European form for the protection of the rights of prisoners. However, although there are still some disadvantages, stemming from the lack of a proper legal basis within the contractual text, the importance of the interpretation given by the European Judge is unquestionable, especially due to the peculiarities in the operation of the penitentiary institutions.
The protection of the individual's social relations falls mainly within the scope of application of Article 8 of the ECHR, which guarantees the right to respect for private and family life, residence and correspondence. Article 8 of the contract is one of the most diverse guarantees contained in it, as it protects, as stated above, four legitimate interests: private and family life, residence and correspondence. These interests are listed separately but in practice they often overlap as they are always aimed at protecting the private sphere in general. The European Court of Justice has not yet come up with a strict and rigid list of interests that can be protected under the roof of Article 8, nor has it formed an exhaustive definition of them. The European Judge has consciously chosen to adopt a dynamic interpretation of the provision, resulting in a continuous extension of its scope.
Prisoners are in a vulnerable position and the authorities have a duty to protect them, and the state is responsible for every detainee, because the latter is entirely in the hands of the authorities. A person deprived of his natural liberty, serving his sentence in a penitentiary institution (whether or not this sentence has become irrevocable or not), should not be deprived of the basic procedural guarantees because of this situation, in particular the right of access to justice. Therefore, in order to protect in a tangible way all the fundamental rights of a substantive nature (in particular the right to respect for human dignity and the right to maintain personal relations with the outside world), the detainee must be able to access and mobilize the mechanisms, the purpose of which is to condemn infringements of those rights. By this logic, the European Judge has expressly expressed his willingness to infiltrate the procedural legality of common law within the prison and to recognize the applicability of the procedural rights contained in the contractual text in areas which were a priori excluded from the scope of domestic law because they were considered to be inherent in the internal order of prisons. Consequently, gradually and under European pressure, prisons were affected by the procedural guarantees from which free persons benefit.
The right to a fair trial under Article 6 of the European Convention and the right to an effective remedy under Article 13 of the European Convention constitute the procedural legality of the contractual text. The European Court of Justice has helped the detainee to benefit from these provisions and has extended their scope. The case law of the Strasbourg Court has inspired the development of European law. European countries, in particular France, England, Germany, Belgium and Spain, have gradually put in place mechanisms to control decisions concerning detainees.
A person deprived of his liberty, as a party, has the ability to enjoy the procedural rights contained in the European Convention. It may, therefore, in the event of a dispute arising out of its inclusion, demand that all of these rights be respected. Although the detainee benefits like a free party from the enjoyment of contractual procedural guarantees, the deprivation of natural liberty undoubtedly has consequences for the ability to exercise his procedural rights. The detainee's submission to the penitentiary authorities, the surveillance to which he is subject, as well as his incarceration constitute obstacles to the effective exercise in the inclusion of these procedural rights. The judgment of the European Court of Justice Barbier v. France of 17 January 2006, in which the applicant complained of a malfunction in the penitentiary services of the detention facility, which led to the dismissal of his appeal as inadmissible, shows that, on the one hand, is not always simple to exercise a right within an institution that deprives one of physical liberty, and on the other hand, it is up to the penitentiary administration to ensure that this right becomes operational in time. There are two key points that have determined the strengthening of procedural legality within penitentiaries, namely, on the one hand, the change in the case law of the Conseil d'Etat on measures of internal order, and, on the other hand, the introduction of procedural guarantees of common law within prison.
The study of the legal remedies provided and the accessibility of the detainees before the French Administrative Judge, leads to the conclusion that there is a very slow development, as the theoretical ideas for improving the accessibility are faced with the difficulties of their practical application. However, the French Administrative Judge's contribution to the protection of both the substantive and the procedural rights of persons deprived of their liberty should not be underestimated. The Judge, with a pragmatic look, shaped the penitentiary law and made new guarantees for the benefit of the prisoners. The particular characteristics of the operational framework in which detainees find themselves often justify the judicial solutions adopted. In particular, the Judge has been engaged in a perpetual hunt to find a fair balance between the actual protection of the rights of prisoners and the requirements of security and order within penitentiaries. In order to achieve this balance, the protection of prisoners' rights must be viewed in the light of deprivation of liberty and confinement, which implies vulnerability, lack of autonomy, and restriction of the exercise of rights by nature. However, even if the restriction of the exercise of substantive rights due to the inherent requirements of incarceration is acceptable, the restriction of procedural rights should not be accepted as they are the necessary means of protecting the substantive rights of detainees.
The process of serving the sentence is an interrelated stage of the unified system of criminal conviction, which includes the pre-trial, main proceedings and the execution of sentences. The assessment of the sentence, which concerns the manner of its execution, is not part of the Greek criminal procedural law, but a distinct branch of legal science, the branch of penal law, as it is mainly reflected in the Penitentiary Code (Law 2776/1999). For the last twenty years or so, the country has been undergoing constant penitentiary reform. The starting point is the establishment of a new institutional framework of incarceration under the Code of Basic Rules for the Treatment of Prisoners (Law 1851/1989), which replaced the previous Penitentiary Code of 1967. In 1999, the new Penitentiary Code was adopted (Law 2776/1999), where according to the relevant explanatory memorandum, the most important thing is the imposition of the penalty against freedom within the framework of the requirements of the Constitution, the International Conventions that have the status of a law of increased formal force, the laws of the Greek State, as well as other international or transnational texts of general recognition, such as above all the European penal rules 1973 and 1987. The connection of the prisoner with the social environment and vice versa are recognized in the Penitentiary Code, as essential conditions for the proper functioning of the penitentiary system, which is why they are regulated in its seventh chapter. The communication takes place through visits, exchange of letters, telephone communication, exit permits from the prison and the established institutions of semi-free living. Precisely because these institutions are treated not as privileges or gifts to detainees but as manifestations of their individual rights or as valves for the smooth functioning of this system of sentencing, an effort has been made to regulate them perfectly without distorting the their content for fear of endangering the security of the prison. The Constitution does not contain a special provision on the right to judicial protection of the detainee, apart from the right to compensation to those who have been convicted, imprisoned or otherwise unjustly or illegally deprived of their personal liberty, provided for in paragraph 4 of Article 7. However, the right to judicial protection of detainees can be deduced from paragraph 1 of Article 20 of the Constitution, according to which "everyone has the right to legal protection from the courts and can develop in them his views on the rights or his interests, as defined by law ". Penal law has little concern for the Greek Administrative Judge, as he has come into superficial contact with it mainly in the context of litigation for damages suffered by detainees or their relatives due to the commission of illegal acts or omissions of penitentiaries. Judicial review of penitentiary decisions and measures taken by penitentiaries, despite affecting the personal situation of detainees and possibly affecting fundamental human rights, is left solely to the criminal Judge, who is primarily the Penitentiary Judge. However, if the position is accepted that penitentiaries institutions continue to be public services and their detained idiosyncratic users, then the question arises as to who could better know the proper functioning of a public service and, consequently, preserve its legality in it other than the Administrative Judge.
Imprisonment is essentially a deprivation of liberty and its consequences for security reasons, while the convicted person still retains the right to respect for human dignity and ties to his family and friends. European case law on the fundamental rights of persons deprived of their liberty confirms this finding. The prisoner, like all human beings, enjoys all the rights of his personal relationship in general. It is, in fact, inherent in his human condition, the ability of a person to enter into relationships with other persons. The recognition by the European Court of Justice of the application during the closure of the right of respect for correspondence, of private and family life, of marriage, creates the sense of a humanitarian perception of it. The individual, although deprived of his liberty and confined to an enclosed space, subject to the observance of security requirements, must be able to come into contact with the outside world. Realizing the inequality that exists between free persons and prisoners in the exercise of their fundamental rights, the European Judge did not stop at the simple recognition of the exercise of these rights during the incarceration but through a dynamic interpretation, facilitated and encouraged the development of personal relationships during inclusion. Apparently inspired by respect for the human dignity of all persons, the Judge granted detainees, for the sake of the theory of positive obligations, a special protection of their personal relations, in order to compensate for this inequality in the application of contractual rights.
Penetration into the prison of human rights is now unquestionable. The European Judge, through a dynamic interpretation, extended the scope of the contractual rights, as well as the conditions of their exercise, all for the benefit of the detainees. The introduction of this new "human rights issue" into the prison environment leads to the consideration of its possible role in terms of the legitimacy of the deprivation of liberty. Fundamental human rights, in particular those that favor the detainee's contact with others, lead to a re-examination of the institution of deprivation of liberty, the aims and means used to achieve them. Furthermore, it is aptly pointed out that we must consider the legal interpretation with the characteristics of the language in which the written legal texts are formulated, because this language is a semantically vague language, the expressions of which have a meaning which depends on the content in which are used.
