That the punishments of imprisonment prescribed by justice amount to the deprivation of the guilty party’s fundamental human rights points to one definition for punishment: the treatment of an individual with less dignity than meets man. Saying in some way, that the crime for which the guilty was found guilty, is characteristic of a lack respect for the dignity and fundamental human rights of others. Therefore the guilty ought also suffer a loss of dignity, freedoms, and/or possessions for justice to be done. Not exactly ‘an eye for an eye,’ but, not unreasonable, and not insufficient in measure.
The European Convention on Human Rights (ECHR) 2010 implicitly acknowledges that imprisonment based on ‘civilised’ justice and a fair trial is not torturous, is not inhuman, and is not degrading. if imprisonment is inherently non of these then one can ask how it is a punishment at all. Therefore there lies an apparent contradiction with article three of section one (Prohibition of torture): No one shall be subjected to torture or to inhuman or degrading treatment or punishment. And because it carries an absolute sense, and embodies the spirit of the entire document.
Prisoners are a people under captivity, and those in solitary confinement are as under house arrest. So imprisonment, by nature, is at the very least, degrading to the dignity inherent in man. A man’s freedom of movement and his privacy are severely restricted. Additionally, human beings are put in cages and may even fed as animals in a zoo. And depending on the individual psychology or choice of the prisoner, it may be properly torturous.
Rephrasing the article three: it says that just punishments, including incarceration and detention, should not be torturous, inhuman, or degrading. But Punishments typically have elements of torture, are an act in degradation, and might be inhumane. So the question, in terms of human rights, if punishments are just, cannot be fundamentally of torture … . Rather, it should be more about whether a punishment and its severity are just and warranted; whether the practice or act of it meets the purpose of it, without reducing the effectors to sadists or mere barbarians.
One may thus actually say that the article three gives no room to imprisonment, thereby going against certain conditions in articles four and five that permit them. And maybe also, it goes against the laws of a country to which it applies. (I’m thinking of Norway and the Anders Behring Breivik human rights case.) It says that imprisonments are illegal and should therefore be abolished.
Hence, for instance, if Anders Breivik must be punished having his ‘fundamental rights’ violated, he should be freed instead. The notion that breaking one law means that the whole law has been broken applies here. If one right is broken, then all is broken. It is therefore false to seek to implement some rights while permitting others to be denied. Should all prisoners be freed and should the ECHR 2010 document be voided?
Finally, if punishments by imprisonment is a true necessity for justice, the thought of the possibility of infringing on any fundamental human rights specified in the ECHR 2010 should not arise. There should be no statement in it absolutely prohibiting imprisonment directly or indirectly. Perhaps the article three should be rethought, expanded, or rephrased. Where do we start if what it says now is fundamental to everything we mean to uphold absolutely?