歐洲人權公約之人道受刑權—以歐洲人權法院判決為中心

監禁原則上僅剝奪限制受刑人之人身自由，惟仍舊享有憲法所賦予之各項自由及基本權利。在此思考下，監禁過程中確保受刑人監禁在與其尊嚴相符之條件下，監禁執行方式亦不得使其承受逾越監禁本質之固有痛苦，且其健康福祉應在監禁實際考量下予以適當地確保此一命題已為歐洲人權法院之一貫見解。歐洲人權公約第三條「禁止酷刑」非人道或有辱人格之處遇或處罰」字義上並未明確指出其係絕對禁止，惟人權公約第十五條則強調公約第三條不得暫停適用，準此可認定公約第三條係一絕對禁止酷刑與任何惡劣處遇之規範。僅管條文中並未指涉三種形式之差異性，惟透過人權委員會與人權法院逐步打造出公約第三條不同類型之態樣，並透過相對性之「最低嚴重性門檻」作為調節公約第三條之絕對性。歐洲人權法院打造公約第三條的腳步不僅止於對惡劣處遇的認定上，更著重在如何充足有效地保障受刑人之尊嚴。本論文以「人道受刑權」一詞強調受刑人不僅應監禁在與其尊嚴相符之條件下，並主張政府在監禁過程中必要情況下，擔負起提供適足醫療協助之積極義務。有鑒於公約第三條規範意義上不夠明確與具體，本文嘗試從人權法院之判決先例中對惡劣處遇各種樣態（如：收容、清潔、單獨監禁與秩序處罰等）之見解闡釋，期能釐清分析歐洲人權保障體系如何藉由尊嚴解釋並改寫公約第三條原有之保障內涵。在我國憲法秩序下，有鑒於「人道受刑權」蘊含肉體精神之完整性、人格權與人性尊嚴等不同之價值內涵，現有基本權清單難以單獨作為保障依據，本文因此主張在憲法規範體系下應將人道受刑權視為一獨立之非列舉基本權，並因其具備不受限制權衡之特質，藉由憲法解釋將人道受刑權視為不受憲法第二十三條比例原則權衡之絕對權。

關鍵字

歐洲人權公；人道受刑權；受刑人；絕對權；人性尊嚴；惡劣處遇；特別權力關係

並列摘要

In general, a person in detention still enjoys all the freesoms and fundamental rights guaranteed under the Constituion other than physical freedoms. During the process of incarceration, ensuring that a person would be detained in conditions which are compatible with respect for his/her human dignity, that the manner and method of the execution of the measure do not subeject him/her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his/her health and well-being are adequately secured is quite accepted by ECHR (European Court of Human Rights). Article 3 of the European Convention on Human Rights (the ‘Convention’), which provides that no one shall be subjected to toture or to inhuman or degrading treatment or punishment, does not expressly provide that its terms are absolute. Nevertheless, Article 3 must be read together with Article 15 of the Convention, which states that no derogation from the provisions of Article 3 can be made. Thus, the European Convention imposes an absolute prohition on toture and other forms of ill-treatment. Yet, Article 3 does not ascribe any definitional characteristics to these forms of ill-treatment. Accordingly, the Court and the Commission of Human Rights have emerged to determine the distinction between the three categories of infringement identified in Article 3. Besides, the nature of the subject-matter alone is not enough to bring ill-treatment within the scope of Article 3. Ill-treatment must attain a minimum level of severity in order to trigger the provision's application. Inevitably, the threshold is relative. The Court has held that it 'depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim.’ However, the decisions of ECHR is more about substantively and effectively protecting the dignity of prisoners than just recognizing which forms of ill-treatment reach the threshold of treatment contrary to Article 3. This thesis adopts a term ‘the right to humane treatment in prisons’ not only to describe that prisoner shall be detained in conditions compatible with his/her dignity, but to urge that the government has the positive obligations to ensure his/her well-being be adequately secured by providing with the requisite medical assistance if in need. With regard to the uncertainty within the context of Article 3, this thesis will try to sort out different aspects of ill-treatment such as accommodation, hygiene, solitary confinement, and disciplinary punishments, and analyze Article 3 of the Convention through its interpretation based on the cases law of ECHR. Therefore, we can take a closer and more specific understanding how the European Human Rights judicial bodies have re-writtten Article 3 through the lens of human dignity. Since ‘the right to humane treatment in prisons’ enshrines different rights such as physical and mental integrity, personality right, and human dignity, this thesis proposes that due to different characteristics of such right, it should be seen as an independent right in our Constitution system. Besides, such right shall be recognized as an absolute right on account of the impermissibility of limitations or derogations through the interpretation of the Constitution.

並列關鍵字

European Convention on Human Rights ； Right to humane treatment in prisons ； Prisoners ； Absolute right ； Human dignity ； Special relationship of subordination