Tuesday, August 28, 2007

Right of Prisoner

Final paper
My name thol ravy
Id : 01209
Prof: Stan starygin
Date: August 28, 2007
Table content
I. Introduction. 1

II. The Basic Right of Prisoners. 1

a). Reception. 1

b). Person who controls in the prison. 1

c). Prisoner’s Right 1

d). Food of Prisoner. 2

e). Prison Rule. 2

f).Rule of prison for Visitor. 2

g).Illegal Arrest and Illegal Detained. 3

h). Prisoner Under Arrest or Awaiting Trial 3

i).Legal proceeding in the court 4

j).Right to be present at the court 4

k). Access to Lawyer. 5

l). How to make a Compliant 5


I. Introduction
Universal Declaration of Human Right (UDHR) proclaimed by the general assembly of United Nation in 1948 that talk about human right mean every body have equal right like right to life, liberty, security,…that these of right provide to all human even person who detained or illegal person who done illegal action they still have basic right as right to life, security, liberty [1] that those right are protect by the government or the law of state[2]. Even in 1955 the United Nation the first Congress on the prevention of Crime and Treatment of offender, adopted “Standard Minimum Rule for the Treatment of Prisoners” and in 1990, United Nation General Assembly has adopted a resolution for “Basic Principle for the treatment of Prisoner”. It started that prisoners should be treated with respect and there should be no discrimination on ground of race, color, sex, language, religion, political, or other opinion, national or social religion, property or other status[3] But it still have some countries did not follow it, Cambodia is the one of those countries that very poor practiced about “Standard Minimum Rile for the Treatment for Prisoners” and “the Basic Principle for the treatment of Prisoners”.
II. The Basic Right of Prisoners
a). Reception
One reception into prison will be search any may be photographed, the prison authority will keep any property that you are not allowed to have with you in prison. A list will be made on arrival of all property and you must be given the opportunity to check it is correct before signing it. All cash must be paid into an account, which is under the governor’s control, all prisoner should be issued on arrival with a copy of prison rule must be made available to any prisoner who request.
b). Person who controls in the prison
In the prison, the person who controls in prison is the Law means the prisoner must follow or respect what prison’s staff said and want. Sometime there is the prisoner get torture until died by the controller[4], some cases they get punishment as tight about two or three days without foods, that this action can show clearly about what they violate the rule of convention on Torture that the government of Cambodia sign on and accepted this convention for practice in the country.
c). Prisoner’s Right
Prisoner retain certain basic right which survive despite imprisonment, the right of access to the court and respect for one’s bodily integrity[5], that is not be assaulted are much fundamental right, Other may be recognized as the law develops, Prisoner only lose those civil right that are taken away either expressly by an statute Act of parliament or by necessary implication. For Example: one right taken away by statute is that prisoners detained following conviction do not have a right to vote. The test in every case is whether the right is fundamental and whether there is anything in the prison Act in 1952, the prison Rules 1999 or elsewhere which authorizes the prison authorities to limit such a right.
d). Food of Prisoner
The Government provide the money to the prison for pay each prisoner about 1500 R (0.38$) per day. it is not spend only food it including everything that spend on prisoner, it is not enough for them especially for prisoner who have illness that it is opposite with rule of person under any form of detention or imprisonment[6] some prisoners can get enough food or water by their relative, if any who do not have relative to visit he will live in hunger.
e). Prison Rule
In law, the Prison Rules have legal force only in so far as the Prison Act 1952 gives authority for the Rule: legal challenges to the Rules have been successful in cases where the courts have held that the Prison Act 1952 does not authorize the scope of a particular Rule. The Prison Rules provide a structure and framework for the regulation of prison life. Breach of the Rules by the prison authorities does not of itself give you the right to sue in the courts for damages. More detailed instructions are given in the Standing Orders and Prison Service Orders and Instructions. These are internal directives, which govern the conduct of prison life issued to prison governors and prison officers. They do not have any direct legal force in that they can be challenged if they breach the scope of the Prison Act or Prison Rules. They are, however, a vital source of information about prisoners’ rights and entitlements and can provide important evidence as to the proper practice that should be adopted by the prison authorities. A failure to follow the guidance contained in these documents can not amount to a denial of a prisoner’s legitimate expectation.
f).Rule of prison for the visitor
The prisoner have no a lot of right with outside, but if there is relative to visit the prisoner , the visitor must pay money first to prison’s staff ,there is only one day a week for visit the prison on policy in rule , but they can to visit every time if they have money for pay to controller around 2000 R to 40000 R it is depend on the controller want to accept, that this action is illegal action of staff prison that violate the rule of the prison[7] and it can make corruption in prison so the prison does not get right what they should to get.
g).Illegal Arrest and Illegal Detained
Illegal Arrest and detained always happen in Cambodia society, even this country accepted the international convention and also have law in t constitutional [8]According to ADHOC’s report there is 488 cases of the court, that court can not find enough proof for fudge on untried person, it show about decrease on court system that equal 19.2 % if we compare to 2005. The criminal law, the police only can arrest the offender in the real action or have enough evidences, but in real actions some authorities had arrest person without show evident or letter court before arrest. it is real violate on criminal law * . That have about 36.8% that authorities practice this action, that arrest people for only money because when they arrest they will get money from people who want have freedom.
h). Prisoner Under Arrest or Awaiting Trial
Persons arrested or imprisoned by reason of a criminal charge against them, who are detained either in police custody or in prison custody (jail) but have not yet been tried and sentenced, will be referred to as "untried prisoners,' hereinafter in these rules, Unconverted prisoners are presumed to be innocent and shall be treated as such, Without prejudice to legal rules for the protection of individual liberty or prescribing the procedure to be observed in respect of untried prisoners, these prisoners shall benefit by a special regime which is described in the following rules in its essential requirements only. Untried prisoners shall be kept separate from convicted prisoners; young untried prisoners shall be kept separate from adults and shall in principle be detained in separate institutions, untried prisoners shall sleep singly in separate rooms, with the reservation of different local custom in respect of the climate. Within the limits compatible with the good order of the institution, untried prisoners may, if they so desire, have their food procured at their own expense from the outside, either through the administration or through their family or friends. Otherwise, the administration shall provide their food. An untried prisoner shall be allowed to wear his own clothing if it is clean and suitable. If he wears prison dress, it shall be different from that supplied to convicted prisoners. An untried prisoner shall always be offered opportunity to work, but shall not be required to work. If he chooses to work, he shall be paid for it. An untried prisoner shall be allowed to procure at his own expense or at the expense of a third party such books, newspapers, writing materials and other means of occupation as are compatible with the interests of the administration of justice and the security and good order of the institution. An untried prisoner shall be allowed to be visited and treated by his own doctor or dentist if there is reasonable ground for his application and he is able to pay any expenses incurred. An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution. For the purposes of his defense, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defense and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.
i). Legal proceeding in the court
Prisoners have the absolute right to commence legal proceedings in the courts either in person or through a solicitor. Prisoners can conduct:
-Normal civil proceedings such as divorce or breach of contract.
-Cases where the prisoner is suing the prison authorities, for example, for assault or medical negligence.
-Judicial review in the High Court of an administrative or disciplinary decision that affects him or her.
The High Court has reviewed a wide range of decisions by the prison authorities, including parole and parole revocation, security categorization, transfer, censorship, segregation and the separation of a mother from her baby. The Race Relations (Amendment) Act 2000 applies to prisons, and discrimination - for example, in the allocation of jobs - would be actionable in the courts. The High Court will intervene by way of judicial review only when it can be shown that a decision has been taken which is wrong in law - for example, where the prison authorities had no power to do what they did - or the decision was flawed by procedural unfairness. A breach of the Prison Rules does not automatically give a prisoner grounds to sue the prison authorities to obtain compensation for their failure to comply with the Rules. In such cases, the prisoner will need to establish some form of compensable loss or damage resulting from the breach of the Rules.
j).Right to be present at the court
At present, if you are a prisoner acting without a solicitor and wish to be produced at court to present your case in person you must apply to the prison governor by completing the relevant request form. This includes a requirement that you undertake to pay the costs of your production. These costs should be limited to production from the prison nearest to the court and the level at which they are set should have regard to what you can actually afford to pay. The courts have recognized that there may be an appearance of bias if the Home Office refused to produce at court a prisoner who was unable or who had refused to give an undertaking as to costs in an action when the Home Office is the defendant to the action. If you are faced with this difficulty you should apply to the court that is to hear your action for guidance. Any refusal to produce a prisoner, particularly when the action is against the Home Office, may be in breach of Article 6 of the Convention, the right to a fair trial.
k). Access to Lawyer
As a prisoner you have an absolute right to have visits from and to correspond with your solicitor. You do not have to tell the prison authorities why you wish to contact your solicitor, nor make any complaint about prison treatment to the authorities before contacting a solicitor for legal advice. This right was first recognized by the ECHR and any attempts to interfere with such access are closely scrutinized by the courts. This right also includes preserving the confidentiality of any legally privileged material held by prisoners in their possession in prison.
l). How to make a Compliant
Within prison, complaints and/or requests may be made in person, or in writing to a governor or to the Independent Monitoring Board (IMB). A governor must be available each day to hear complaints or requests. You need not give the reason for your application to see the governor and an application may be made direct in writing and in confidence to the governor or chair of IMB. You will have to give a reason if you wish the complaint to be dealt with in confidence, and it may be that the person complained about will be told of the complaint anyway - which rather discourages complaints of this nature. If a complaint is made to the governor, you should normally receive a written reply within seven days.

In my view, I think if we want to make every body know clearly about human the government of state should education more clearly about basic of human right on Universal Declaration of Human Right to people and especially about treatment of prison because now a day gap between legal people and prisoner is very big, and especially the government of state should make law very strike for the prison and the person who control in prison, mean if they violate law they will punish as the prisoner and have clearly about regulate of prison .

-Stan Starygin,2007, Human Right and World Politic.
-Report on January, 2007, LICADHO
-Human Right Condition, February, 2006-2007, ADHOC
-Constitutional of Cambodia
-www.yourright.org/chapter of prisoner.
-www. Right of prisoner and treatment of prisoner.

[1] Art.3 in UDHR

[2] Art. 6 of ICCPR
[3] Art.18 of ICCPR
[4] Art.1 – All prisoner shall be treat with the respect due to their inherent dignity and value as human beings
[5] Atr.14 of ICCPR – all person shall be equal before the court and tribunals
[6] Art.1- all person 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
[7] rule of visit –only Thursday of week can visit the prisoner
[8] Constitutional of Cambodia


kray sokkanha said...

Dear Ravy

After I have read your paper, I was wonder that your topic is about right of prisoner but you do not mention about the specific rights that the prisoner have. You should talk more about the rights they have and the rights they have not. Your conclusion said that if the staff of prison fight or violate the prisoner right, the government should punish them as prisoner. I have support this idea because they have no rights to punish them without law. However, related to your paper, I have some question to ask you. If the staff of prisoner violet or do something wrong on prisoner. Should they have punished from the law?

Stan Starygin said...


Hi Ravy,

I paid particularly close attention to this topic as it is the area of human rights in which most of my work is done. I appreciate your trying to be thorough about the aspects of rights that pertain to detention and imprisonment. I am not sure I agree with the approach taken to the content of this paper, though. It seems that you had compiled research done by others in different jurisdictions without conforming the content of this paper to either Cambodian or international law (it is evident from your use of terms such as "the High Court", etc which don't exist in the Cambodian context. The method of footnoting you had elected doesn't conform to that of the Bluebook which I specifically assigned to this class. With this said, I do appreciate and recognize your effort to put your research findings into your own language and think through the issues of application of prisoner rights.