Abstract
Abstract In recent years, a growing attention for the specificities of female detention has spurred the adoption of a consolidated corpus of international soft-law tools, as well as reports on the conditions of incarcerated women. This momentum has not been paralleled by court decisions focusing on gender as a key issue in determining potential violations to prisoners’ rights, neither at a domestic nor at an international level. The paper will explore the gap between said legislation and policies and their implementation, particularly focusing on the case law of the European Court of Human Rights. The perspective adopted by this Court in interpreting the gender specificities of women in prison seems to be uncritically grounded in the vulnerability paradigm and the protection of motherhood. We will attempt to decode this normative ideology and to read it in context, and in comparison with the consolidated case law of the Court on the legal notion of vulnerability in prison, as well as with its case law on gender topics and the prohibition of discrimination. The analysis will highlight the most critical aspects of the traditional interpretation of gender equality in prison, as well the need to reconsider gender as a relevant issue in the protection of prisoners’ rights.
Highlights
The topic of gender in the International legal arena offers an interesting challenge
As an area of public action, international law reinforces the idea of the law as an abstract and autonomous entity, separated from political, economic, and social systems, operating on a purely rational basis and destined to achieve universality, neutrality, and objectivity3
It could be argued that women in prison should be able to enjoy the protection of human rights, albeit with restrictions that are unavoidable in a closed environment20
Summary
The topic of gender in the International legal arena offers an interesting challenge. As a matter of fact, the general framework of international legal instruments for the protection of women in prison is designed to consider female specificity in a motherhood/biologically-oriented perspective, reading all other sociological aspects of female imprisonment under the lens of the universal nature of human rights in prison. It could be argued that women in prison should be able to enjoy the protection of human rights, albeit with restrictions that are unavoidable in a closed environment20 This framework should work based on specific anti-discrimination provisions, as is the case with many international tools, in order to reduce potential gender inequalities in the protection of prisoners and their rights. This legal structure, based on the fallacy of. This separation dogma is tied to the notion of vulnerability, assumed as a status quo in the interpretation of the relationship between men (aggressor) and women (victim) in prison
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