III)  The purpose of imprisonment and restriction of rights under the principle of “ultima ratio” III) The purpose of imprisonment and restriction of rights under the principle of “ultima ratio” A number of factors is involved in achieving the purpose of imprisonment. 6 From motivational factors (permeable groups of internal differentiation, disciplinary punishments and rewards, treatment programmes, job assignments) to activities of the specialist employees (educators, special pedagogues, psychologists) to the material conditions (equipment of the accommodation and personal hygiene spaces, sports facilities, equipment of visitor and entertainment rooms, etc.). 7 Section 27 (2) of the Imprisonment Act includes an exhaustive list of the fundamental rights and freedoms of convicts that are suspended during imprisonment. The third paragraph of the same Section also defines the rights of which the convicts are completely deprived during imprisonment (e.g. a free choice of health care services provider). Simultaneously, paragraph 1 of the same Section stipulates that the convicts have a duty to submit to restriction of certain rights and freedoms whose exercise would be in conflict with the purpose of imprisonment or which cannot be exercised on account of imprisonment. Restriction of the rights and freedoms of the convicts is only permitted if this is necessary to achieve the purpose of imprisonment. In every restriction of a fundamental right or freedom of a convict, two facts must be given consideration: 1) whether a more lenient measure could be used; and 2) whether the infringement of the convict’s rights and freedoms is proportionate. Meeting these conditions is evaluated by the courts in the so-called proportionality test. 8 ECtHR favours a similar approach, where the Convention is found violated if a restriction of a fundamental right is not based on a law, does not follow a legitimate goal or is not necessary in a democratic society. 9 6 Section 1 (2) of the Imprisonment Act describes the purposes of imprisonment as follows: The purpose of the sentence of imprisonment (hereinafter only “imprisonment”) is to use the instruments stipulated by this Act to influence the convicts so that the risk of recidivism of their criminal behaviour is reduced and they can lead a self-sufficient life in accordance with the law after their release, and to protect society against criminals and to prevent them from committing more crimes. Section 2 (1) of the Imprisonment Act stipulates that imprisonment may only be carried out in a manner that respects the personal dignity of the convicts and reduces the adverse effects of deprivation of liberty; however, this must not jeopardise the need to protect society. Paragraph 2 further stipulates that imprisoned convicts must be treated in such a way as to protect their health and, if the term of imprisonment makes this possible, support such attitudes and skills that will help the convicts reintegrate into society and enable them to lead a self-sufficient life in accordance with the law after their release. 7 8 MURDOCH, Jim. The treatment of prisoners. European standards. Strasbourg: Council of Europe, 2008, p. 213 In its Judgement File No. Pl. ÚS 4/94 of 12 October 1994, the Constitutional Court inferred one of the basic rules of functioning of the State power, i.e. the principle of proportionality and the prohibition of abuse of the law. The Constitutional Court noted that in cases of conflict between the fundamental rights and freedoms with public interest or other fundamental rights and freedoms, “... it is always necessary to assess the purpose (goal) of such an infringement in view of the means that are used, where the measure for such assessment is the principle of proportionality (reasonability in a broader sense), which could also be called a prohibition of excessive infringement of the rights and freedoms.” 9 Kmec, J., Kosař, D., Kratochvíl, J., Bobek, M. Evropská úmluva o lidských právech. Komentář (Charter of Fundamental Rights and Freedoms. Commentary). 1st edition. Prague : C. H. Beck, 2012, pp. 883-884. /10/