A Right Without Substance? The Right to Education in Prisons in European Human Rights Law
By Sam Mottahedan
Education has been formally recognized as a human right since the 1948 Universal Declaration of Human Rights. Article 13(1) of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) provides ‘the right of everyone to education’. Article 2 of Protocol 1 of the European Convention of Human Rights (ECHR) similarly provides that ‘no person shall be denied the right to education’. While all of these treaties imply that the right to education applies to all persons, including, therefore, to all persons in prisons, the right of prisoners to education remains problematic in both European human rights law and practice.
A Limited Right: ECHR Jurisprudence on Prison Education
Rather than interpret Article 2 of Protocol 1 as imposing an obligation on the state to make available a particular type of education, the European Court of Human Rights (ECtHR) in Velyo in Velev v. Bulgaria constructs the Article as guaranteeing only access to ‘existing’ educational facilities, including in prisons where there are none (para.31). In contrast, the Committee on Economic, Social and Cultural Rights (CESCR) considers that the right to education consists, inter alia, of the ‘availability of functioning educational institutions’ that are ‘accessible to everyone, without discrimination’.
By focusing exclusively on accessibility, the ECtHR fails to provide genuine substance to the right to education, with particular detriment to the right to education of prisoners. A parallel could be made with Golder v UK, where the ECtHR recognized that the right to a fair trial implied a right to a court. In Golder, the Court understood that if Article 6 concerned exclusively the ‘conduct of an action which had already been initiated before a court, a Contracting State could, without acting in breach of the text, do away with its courts’ (para 35). In a similar vein, would the ECtHR allow states to wholly ‘do away’ with educational facilities?
In the context of primary, secondary and higher education, the question may seem hypothetical, both because of the existence of other human rights protections and due to political pressures for the availability and fair distribution of public services. However, as the Special Rapporteur to the right of education, Vernor Muñoz has noted, the major barrier to the education of prisoners is public opinion, ‘often indifferent and ignorant of detention’. ‘These [public] attitudes are fuelled by an often equally ill-informed and ill-advised media which […] focuses almost exclusively on unrepresentative individual violent events’. The ‘ready willingness of politicians to reflect these fears in penal policy’ results in a general reluctance to legislate prisoners’ right to education, and facilitates ‘an environment inherently hostile to its liberating potential’.
Conclusion – Proposing a new legal framework
The ECtHR should adopt three interrelated approaches towards the right to prison education. Firstly, the court should consider, as it did in the context of health-related rights in Kudla v Poland, that, ‘given the practical demands of imprisonment’ (para 94), education must be secured in prisons. In this regard, the court would find support from a range of European initiatives that have emphasized the importance of prison education in combating the negative and deskilling effects of imprisonment and in ensuring prisoners’ reintegration. A key document is the 1990 Recommendation of the Council of Europe on Education in Prison, the preamble to which considers that education in prisons helps to humanize prisoners and facilitates their reintegration.
Secondly, the ECtHR must address the question of what can be considered as an acceptable level of educational facilities in prisons? Although neither the CESCR nor the ICESCR provides guidance on what availability means in the context of prison education, such guidance can be found, in the UN Mandela Rules as well the European Prison Rules, which recommends, inter alia, education that meets ‘individual needs’ and is integrated with the educational system of the country.
Lastly, the ECtHR should consider whether prison education is itself a human right. In Vinter v UK, the Court held that a prospect of release for detainees is necessary because ‘human dignity’ requires that there must be a chance for a prisoner to move towards rehabilitation. The ECtHR's recognition of ‘human dignity’ should similarly be engaged in the context of prison education. In his report on prison education, Muñoz observed that as ‘human dignity […] implies respect for the individual, in his actuality and also his potential’, education which ‘is uniquely and pre-eminently concerned with learning, fulfilling potential and development’ should be a fundamental concern in prisons. Human dignity is a disputed concept. However, where prisoners are provided with no education to access, along with no agency to address its absence, can it actually be argued that the human dignity of prisoners is being respected?