Perspective Chapter: Phenomenology and Legal Framework for Recognition and Responding to Prison Discrimination

Abstract

The paper analyzes the phenomenology and the international legal framework for recognizing and responding to discrimination. Members of the Security Service in prisons must know the legal framework for the exercise of official powers, but at the same time understand their rights and obligations, as well as the human rights of persons deprived of their liberty.

1. Introduction

The transition from the understanding of security, in which the main goal was the protection of state security, to the concept of human security, entails a changed role of subjects in the Directorate for Execution of Criminal Sanctions, which are no longer just bodies responsible for executing criminal sanctions. Today, they have a much broader and greater social responsibility and significance.

Today, members of the Security Service, employees of the Treatment Service, the Health Care Service, the Training and Employment Service and the General Affairs Service within the institutions for the execution of criminal sanctions must possess multidisciplinary knowledge. At the same time, they are civil servants, but also someone who should listen, advise and understand the problems of persons deprived of their liberty. In working with persons deprived of their liberty, different relationships are established and it is necessary that officials have the knowledge that will enable them to recognize and react to security threats, but also toprotect the human rights of persons deprived of their liberty.

2. The concept of human rights and the rights of persons with personal freedoms

Human rights in their present form are a recent achievement, and were first formed as a legal acquis in the Declaration of Independence of the United States from 1776 [1] while significant progress was made by the French Revolution, i.e., the Declaration of the Rights of Man and Citizen from 1789 [2]. The need to respect human rights is required to ask an important question: what are contemporary human rights and freedoms, as well as judicially related to the content of states and the rule of law? The answer is: first of all, these are subjective rights that every human being possesses as a member of the human race [3]. Nevertheless, the governments of many countries arbitrarily granted or denied these subjective rights in certain periods [4]. Placing human rights at the very top of international politics and social issues is largely the result of nations facing the Nazi Holocaust [5].

In modern human rights law, the principle that all people are equal is generally accepted. The principle of equality is observed as well as the principle of non-discrimination. The word discrimination is of Latin origin and means distinction, which in the case of human rights would be an “impermissible distinction”. It is in international law it is forbidden for anyone to suffer the consequences because he differs from other people in skin color, gender, religion, political belief, social origin, property. Common to all the basics in the distinction is that these are mostly human traits that people do not acquire of their own free will and make them members of a larger group against which discrimination is directed, and “where human happiness, well-being, security — finally human life itself it depends on someone else’s alms and charity, no matter how generous the occasion, that there can be no talk of a life worthy of a man [6].”

The term human rights originates from the period after the Second World War and the founding of the UN, when this term replaced the original phrases “natural law” and “human rights” [7]. All human rights are universal, indivisible, interdependent and interconnected. They are universal, which means that they belong to every human being equally. Like any other type of right, human rights are protected through various mechanisms—the Constitution, laws, international treaties and the like. In these documents, individuals are seen through a certain category (citizen, woman, worker, foreigner) or through classification into a certain group (ethnic group, political party, association).

This classification does not jeopardize the universality of human rights, but primarily serves for more efficient and precise protection. Human rights are inalienable, inseparable from the individual. They are not and cannot be a matter of merit, reward or choice, they cannot be sold, given away, earned or taken away. Human rights are irrevocable, which means that the state or someone else cannot revoke them. Human rights are indivisible. They are of the same importance and interdependent, so one group of rights cannot be achieved at the expense of another group of rights [8]. Jasmina Hasanbegović states that: “Without human rights, there is no citizen—there is only Untertan (which is a German word for subject, more precise than the English word subject). Without human rights, there is no modern democracy, no modern constitution or constitutionalism, no rule of law understood as the rule of law [9]”.

Human rights have gone through several categories throughout history and there is a tendency that with the globalization and development of society, the corpus of human rights is constantly expanding. Some of the basic human rights are in the domain of civil, political, economic, social and cultural rights, among others: the right to life, the right of a person not to be subjected to torture or inhuman or degrading treatment or punishment, the right of a person not to be held in slavery or subordination, or to forced or compulsory labor, the right to personal liberty and security [10].

Personal freedoms and rights encompass multiple individual human rights. “These are freedoms and rights that protect the physical and spiritual integrity of a person and his privacy … and these rights and freedoms, enshrined in the constitution, set the boundaries of state power [11].” The range of human rights is diverse and wide and still includes: the right to a fair hearing in civil and criminal matters and other rights related to criminal proceedings, the right to private and family life, home and correspondence, freedom of thought, conscience and religion, the right to decent Life, in accordance with the provisions of the International Covenant on Economic, Social and Cultural Rights, the right to safe and healthy working conditions, the right to advancement in accordance with years of service and abilities, the right to rest, leisure, reasonable limitation of working hours, the right to freedom of association, the right to social security, the right of family, children and minors to protection, the right to an adequate standard of living and protection from hunger, freedom of expression [10].

Basic political rights and freedoms include: freedom of opinion and expression, freedom of peaceful assembly, freedom of association, freedom of the media, the right to information and access to information held by public authorities, the right to vote, the right to participate in public affairs and the right to petition [12]. Other important rights are: the right to marry and to found a family, the right to property, the right to education, the right to freedom of movement and residence. The right to property, the right to work, the right to a fair wage and equal pay for work of equal value, the right of the individual to the highest degree of physical and mental health, the right to education, the right of parents to religious and moral education of their children in accordance with their beliefs, the right to participate in cultural life, the right to use science and technology. Derive from copyright, the right to freedom in the fields of science and creativity, the right to conditions that ensure the preservation, development and dissemination of science and culture, the right to equality of peoples, the right to development, the right to peace, the right to a healthy environment [10].

Finally, when it comes to human rights and actions of the subjects of the system of execution of criminal sanctions, the most important is the following corpus of human rights and their respect: the right to life, prohibition of abuse and position of persons deprived of liberty, prohibition of slavery and forced labor, right to liberty and security personalities, the right to privacy and the secrecy of correspondence, protection of personal data and protection of privacy, freedom of expression, right to work, labor rights, right to social security, minority rights, position and rights of Roma, problems and rights of persons with disabilities, position of persons of different sexual orientation or gender identity, gender equality and special protection of women and other rights of persons deprived of their liberty.

A 2002 Human Rights Watch report stated that standards for the protection of persons deprived of their liberty in most countries of the world were “astonishingly low.” Namely, in some countries, corporal punishment and routine use of shackles and chains are still allowed today. Explosions of violence are not uncommon, so in some countries murders between prisoners are common, e.g. in Brazil, Kenya, Venezuela, Panama). The number of persons deprived of their liberty, especially prisoners, who die during deprivation of liberty worldwide, especially in suicides, is in constant progress, so that the suicide rates of persons deprived of their liberty are many times higher than the suicide rate in the general population [13].

Each of the human rights of persons deprived of their liberty may be restricted by some form of discrimination, so it is crucial to point out the concept of discrimination. Discrimination is any unjustified discrimination or unequal treatment, i.e., omission (exclusion, restriction or preference), in relation to persons or groups as well as to members of their families, or persons close to them, in an open or covert manner, based on actual or presumed personal property [14].

Simply put, discrimination is unequal treatment of a person or a group on the basis of some of their personal characteristics, which results in inequality in the chances of exercising the rights guaranteed by the constitution and the law. It is unequal treatment, exclusion, the bringing into a subordinate position of individuals or groups of people who are in the same, similar or comparable situation [15].

It can be discriminated against by doing or not doing. A good example of inaction may be when the prison administration does not display notices in the language and script of persons deprived of their liberty from national minorities, even though the conditions prescribed by law are met. Discrimination can happen to anyone: prison employees (individuals and groups of employees), persons deprived of their liberty, but also a legal entity. A person who discriminates in one social situation may in some other circumstances be a discriminator, i.e., a person who discriminates [15]. Having in mind the powers it possesses, the situation is especially dangerous when the state is in the role of a discriminator. An act of discrimination can be directed at an individual, but also at a wider group of persons deprived of their liberty [16].

Discrimination can be direct or indirect. Immediate discrimination exists if a person deprived of liberty or a group of persons, due to his or their personal characteristics in the same or similar situation, by any act, action or omission is placed or placed at a disadvantage or could be placed at a disadvantage. Dušan Pokuševski states that direct discrimination is easily recognizable, it is visible, and the discriminator does not try to hide his actions [17].

Indirect discrimination exists if a person deprived of liberty or a group of persons, due to his or her personal characteristics, is placed at a disadvantage by an act, action or omission which is ostensibly based on the principle of equality and non-discrimination, unless justified by a legitimate aim. Achieving that goal are appropriate and necessary [18].

When it comes to the necessary conditions for respect for human rights and protection against discrimination in deprivation of liberty and execution of all criminal sanctions, certain principles that must be respected are important. Namely, it is necessary to respect and consistently apply all laws and bylaws in this area, then act humanely with all persons deprived of liberty without degradation of their personality, without discrimination and humiliation. Torture, abuse or experimentation are also prohibited. Persons deprived of their liberty must be provided with contact with the outside world and family and informed about events outside the institution where they are detained or serving a prison sentence, they must be provided with occupational therapy and professional training, as well as appropriate measures and treatments rights, which will be discussed in more detail later [19].

2.1 International legal framework for the protection of the human rights of persons deprived of their liberty

The protection of human rights, and the rights of persons deprived of their liberty in general, can be viewed from two aspects—domestic and international. The internal system of human rights protection is older, institutionally better built, because national institutions are almost always institutions of protection. The basis of such protection is the constitution as a fundamental document, as a lex fundamentalis and a lex superior. International protection of human rights is more recent and has been intensively developed after the Second World War.

The basis of such protection are international treaties of states, and one of the ways to realize the rights contained in these documents are international institutions, primarily with the characteristics of a judicial body. “First, an international agreement should be signed, which precisely defines and carefully enumerates various individual rights. Each state should then undertake to take the necessary measures to implement the law in question into its constitutional law. Finally, an international body of an administrative or judicial nature should monitor the exercise of this constitutional right [20]…”.

To date, more than 40 treaties, resolutions and other multilateral (universal and global) documents of a binding nature have been adopted, which are considered international sources of human rights and are in conflict with the domestic law of the signatory states. In some cases, they defined human rights even more precisely and concretely, and in some cases they even expanded certain rights and protections. In doing so, it should be borne in mind that charters, conventions, agreements and treaties on human rights are dynamic documents, i.e., “living instruments” that should be interpreted in accordance with the development of modern circumstances. On the other hand, several declarations of a recommendatory-normative character were adopted, namely: “Universal Declaration of Human Rights of 1948″, “Geneva Convention of 1948, revision of 1949″, “International Convention on Human Rights Asylum of 1951.” “Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief of 1981″, “Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power of 1985″, “Declaration on protection of all persons from enforced disappearance in 1992.” “Declaration on the Rights of Persons Belonging to National, Ethnic, Religious or Linguistic Minorities of 1992 [21]”.

International instruments that have an undoubted impact on penological law and the system of standards for the execution of criminal sanctions are numerous and diverse:

Standard Minimum Rules for the Treatment of Prisoners [22] were adopted in 1955. at the First UN Congress on Crime Prevention and the Treatment of Delinquents, as a result of the work of the International Prison Commission. They were confirmed on July 31, 1957. by the UN Economic and Social Council in Resolution 663 C I (XXIV).

Given the progressive development of human rights since 1955, in December 2015, the Standard Minimum Rules for the Treatment of Prisoners were revised, with revised rules known as the “Nelson Mendela Rules” in honor of the late South African President who 27.god. Spent in captivity during his struggle for global human rights, equality, democracy and the promotion of culture and peace [23].

These rules proclaim several basic principles in the treatment of prisoners. First of all, the approach to protection from crime through punishment, which has the basic goal of re-education, is important. It is important to apply adequate corrective, educational and other methods, which lead to resocialization. Furthermore, the treatment of prisoners should be such as to enable them to perform normal roles in freedom, and prison conditions must be adapted to the conditions of release so that convicts may be prepared for life at large after serving a prison sentence [24].

These rules must be applied impartially. There must be no discrimination based on race, color, sex, language, religion, political or other beliefs, national or social origin, property status, birth or any other status. The religious beliefs and moral principles of prisoners must be respected. For the purpose of the practical application of the principle of non-discrimination, prison administrations must take into account the individual needs of prisoners, and in particular the most vulnerable categories in prison settings [23].

The Republic of Serbia, as well as the Republic of Romania and the Republic of Northern Macedonia are bound by all major international human rights treaties, namely: the International Covenant on Civil and Political Rights and two protocols to the Covenant, the International Covenant on Economic, Social and Cultural Rights, the International Convention on Abolition all forms of racial discrimination, the International Convention on the Elimination of Discrimination against Women and the Protocol to this Convention, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Protocol to this Convention, the Convention on the Rights of Persons with Disabilities and the Protocol and other international acts [25].

International Covenant on Civil and Political Rights [26] in Articles 9 and 10, it proclaims fundamental rights when it comes to persons deprived of their liberty. In relation to these persons, the principle of humanity and non-discrimination is proclaimed. The principle of humanity is reflected in the provisions of the Covenant, which stipulate that persons deprived of their liberty are treated humanely, with respect for human dignity, which is inseparable from the human person [27]. This principle is also reflected in the prohibition of torture, cruel, inhuman or degrading treatment or punishment. It is especially forbidden for persons deprived of their liberty to undergo medical or scientific research. In accordance with the principle of non-discrimination, the provisions of this act state that all persons, without any discrimination, are equal before the law and in court and that member states are obliged to prohibit any discrimination based on race, sex or color within their national dignity., language, religion, political or other belief, national or social origin, property status, birth.

Basic principles for the treatment of prisoners [28] no. 45/111 of 14 December 1990 emphasizes the prohibition of discrimination against prisoners on any ground, and they must be treated with respect for the innate dignity they possess as human beings. Prisoners have the right to take part in cultural activities, and are guaranteed the right to access health facilities available in the country without discrimination on the basis of their legal status. Prisons must, as far as possible, create the conditions for reintegration so that former prisoners can be easily integrated into the social environment after release.

In 1984, the UN General Assembly adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [29]. This Convention obliges States to criminalize acts of torture, attempted torture and all other acts of any person complicity in an act of torture, and to prescribe appropriate penalties commensurate with the gravity of the offense.

The European Convention on Human Rights is also very important to us (European Convention on Human Rights, фр. la Convention europeenne des Droits de l’Homme) as a legal act of the Holy Europe on the protection of freedom and rights, passed in Rome, Italy, on November 4, 1950. In the period from 1950 to 2004, 46 countries signed the Convention. The signing marked the acceptance of the obligation to respect rights and freedoms, as well as the recognition of the jurisdiction of the European Court of Human Rights. The Convention has a total of 59 articles, of particular importance is Article 1, which sets out the obligations of all signatory states to respect the rights and freedoms they guarantee. Pursuant to the provisions of Article 3 of the European Convention, no one shall be subjected to torture or to inhuman or degrading treatment or punishment. Article 3 absolutely prohibits torture, inhuman or degrading treatment or punishment and as such does not provide for any exceptions or derogations from it in accordance with Article 15 of the European Convention on Human Rights, even in times of war or other danger to the survival of the nation.

The rights and freedoms guaranteed by the Convention are: the right to life (Article 2), the prohibition of torture, inhuman and degrading treatment (Article 3), the prohibition of slavery and forced labor (Article 4), the right to liberty and security (Article 5), the right to a fair trial (Article 6), punishment only on the basis of law (Article 7), the right to respect for private and family life (Article 8), freedom of thought, conscience and religion (Article 9), freedom of expression (Art. 10), freedom of assembly and association (Art. 11), the right to marry (Art. 12), the right to an effective remedy (Art. 13), the prohibition of discrimination (Art. 14) [13].

The Short Guide to the European Convention on Human Rights emphasizes the importance of individual freedom and security, in Article 5 of Protocol No. 1. 4: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law, (in the case of lawful arrest or deprivation of liberty for failure to comply with a lawful court decision or for ensuring fulfillment of an obligation prescribed by law; competent authority due to a well-founded suspicion that he has committed a criminal offense or because it is justifiably considered necessary to prevent him from committing a criminal offense or to flee after the commission, in case of deprivation of liberty of a minor on the basis of a legal decision on educational supervision; in the case of lawful deprivation of liberty to prevent the spread of infectious diseases, mentally disturbed persons, alcoholics, drug users or vagrants, in the case of lawful arrest or deprivation of liberty to prevent unauthorized entry into the country or to ensure expulsion and extradition). Any person arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of the possible charge against him [30].

The portal “Safety in the palm of your hand” presents the relationship between human rights and security actors in prisons, which is said to be: “Human rights are innate rights of every human being. Security sector actors who use force are obliged to respect human rights in the performance of their duties and powers in accordance with international human rights law and human rights standards in the security sector. Each state has an obligation to ensure that members (employees) of security sector actors who use force respect and implement human rights and fundamental freedoms that are reflected in instruments of international law and that are in accordance with the relevant national constitutional and legal provisions [31].

European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment [32] was adopted in 1987, and entered into force in 1989. and sets out in more detail the mechanism for the protection of persons restricted by freedom of movement from public authorities from torture, inhuman or degrading treatment or punishment, and establishes a European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). The most important documents that have established and regulated standards for the humane treatment of convicted persons at the international level are the European Prison Rules, regarding prison treatment between the member states of the Council of Europe.

The European Prison Rules, adopted in 1987 (revised in 2006), set out a detailed system of rules for the protection of persons deprived of their liberty in European countries.

The first part states the general principles and determines the scope of application. Among the general principles are: respect for human rights and freedoms, minimum restrictions on persons deprived of their liberty, proportionate to the legitimate aim for which they were imposed, approximation of prison conditions to conditions of freedom, prison staff perform a public function and should therefore be carefully selected and trained to provide the necessary working conditions…

The Second Part contains provisions on the conditions for closure: Admission to the institution—is possible only with a referral order, issued in accordance with the law; upon admission, data is first recorded, familiarized with the rules, medical examination … Referral to prison and accommodation—if possible, prisoners are sent to prisons that are close to their homes and families. Accommodation conditions should be such as to respect hygiene, privacy, lighting, heating … Hygiene—all prison premises must be constantly maintained and cleaned, prisoners must have access to hygienically correct premises, bathing conditions must be provided every day or at least twice a week. Clothing and bedding—clothing must not be degrading or degrading and must correspond to climatic conditions. Nutrition—Prisoners have the right to a diet appropriate to their age, health and physical condition, religion, culture and nature of work. Legal aid—The prison administration is obliged to provide conditions for the provision of free legal aid. Contacts with the outside world—Prisoners have the right to communicate, without restriction, by letters, telephone, or otherwise with family members, other persons, and prison services assist them in doing so. Prison regime—within the prison regime, a program of activities is envisaged that will enable all prisoners to spend enough time outside the prison premises for social integration. Labor—It should never be used as a punishment and prison authorities must strive to provide enough useful work for prisoners, without discrimination on the grounds of genderPhysical activity and recreation—Every prisoner should be able to exercise for at least 1 hour in the fresh air each day if weather conditions allow. Education—Education as a treatment for convicts must be available to all, especially to illiterate persons and young people. Freedom of opinion, conscience and religion is guaranteed to all persons. Transfer of prisoners—must be done in such a way that care is taken to keep the person as exposed as possible to the public eye. Release from Prison—All prisoners are released without delay, after the expiry of the transfer order or when a court or other authority orders their release.

The third part pays attention to the health of convicts: health care, mandatory professional staff, at least one health worker, who also has knowledge of psychiatry. The fourth part contains recommendations regarding the maintenance of order and security in the prison, where it is said that order is maintained by taking into account the need for security, while providing prisoners with normal living conditions that respect human dignity.

Part Five discusses the administration and staff, bearing in mind the prison system as a public service, and states that prisons are managed in an ethical spirit, and that prisoners are treated in a humane manner. The sixth part includes provisions on inspection and supervision, which provide for both state inspection and independent supervision. The seventh part is dedicated to the detainees, and their status, clothing, contact with the outside world. Increase suffering [33].

3. Migrants as a vulnerable group in prisons and their legal status

In recent years, the analysis of the situation and trends in the Balkan and European countries show increased migration and movements of migrants and refugees, many of which belong to vulnerable categories of persons, such as: unaccompanied children, potential and victims of trafficking, single parents with children, the elderly and people with disabilities. There has also been a significant increase in the number of illegal migrants and this trend is expected to continue in the next few years. The routes of illegal migration through Turkey, Greece, Northern Macedonia, Bulgaria, Romania and Serbia are current, one branch goes through the Mediterranean Sea to Italy, as well as through Spain, and lately routes through Belarus have been appearing. Migrants most often transit through the Republic of N. Macedonia, because the country is a crossroads of international corridors. There is also the so-called the “Western Balkans” route, through which over one million migrants and a large number of illegal migrants have passed in the last two years alone. Countries of origin of illegal migrants are Syria, Afghanistan, Pakistan, countries in the Middle East and Africa. Illegal migrants usually enter from the southern border of the Republic of N. Macedonia with the Republic of Greece, on the territory of the municipality of Gevgelija and the surrounding area. They leave the country mostly on the northern border with the Republic of Serbia, through illegal crossings in the municipalities of Kumanovo and Lipkovo. In addition, illegal centers of entry and exit from the country were discovered on several occasions. There is also a branch through Kosovo, which is used as an alternative to the existing corridor to the Republic of Serbia. Transit through the Republic of N. Macedonia is implemented in an organized manner by criminal groups. Transportation is usually done by passenger motor vehicles or by busses, rare trains. The number of unaccompanied foreign children is also remarkable. The growing number of legal migrants has caused incidents and tensions at the border, which has required the involvement of an increasing number of security forces to prevent illegal or unregistered migrants from entering. To discourage illegal entry, control and channel the flow of migrants to legal entry and migration crossings, a security fence was erected, reinforced in parts of the border suspected of being used for illegal crossing. Macedonian security forces managed to prevent the entry of over 7000 illegal migrants in 2016 alone. Macedonian authorities have requested bilateral assistance from EU member states with border surveillance and equipment, as well as relocation of border police, to assist Macedonian border police with patrols, registration and identification and security checks. So far, several countries have decided to send police representatives: Croatia, Hungary, Serbia, Slovenia, the Czech Republic, Slovakia and Austria. Also, tackling human trafficking is still a challenge for the state. Republic of N. Macedonia is not desirable place for the migrants. They just transit in the way to their destination. Most often, these are people from vulnerable categories, motivated by various social, economic and social factors, such as: poverty, gender discrimination, domestic violence and other personal conditions of the victim, such as age, health status, special needs and the like. Often these people are the target of attacks by certain criminals who rob them. In the period 2013–2015, 27 victims of human trafficking were identified who were the target of exploitation, as follows: labor—3 persons, sexual—9 persons, labor and sexual—9 persons and forced marriage—6 persons. Most often it is about women. Consequently, the competent institutions documented 244 cases related to human trafficking and illegal migration. In the period 2013–2015, human trafficking and illegal migration were reported against 338 persons, and 186 persons were sentenced. Of these, 11 received suspended sentences and 175 received effective prison sentences. Migrant detainees have the right to be treated like any other person deprived of their liberty. Therefore, from the very beginning, they have the right to be informed about the situation in which they find themselves and about their rights that belong to them in accordance with the legal regulations [34]. All persons are equal before the law, regardless of gender, race, religion, nationality and have the right to protection in accordance with the Constitution and positive legal regulations. They had the right to an interpreter and to communicate with the relevant diplomatic and consular representatives. In this sense, migrants enjoy all the rights and freedoms guaranteed by international instruments, the Constitution and legal regulations, including the right to asylum [35]. Migrations are a modern, global phenomenon that means any permanent change in the place of residence of individuals or social groups, or any form of temporary or permanent movement of individuals in space. Emigration is the act of leaving or leaving one country for the purpose of settling in another country. Immigration is the reverse process, in which citizens of other countries immigrate to the country for settlement purposes. Foreigners are all migrants who are on the territory of the Republic of Serbia, Northern Macedonia or Romania, and do not have Serbian, Macedonian or Romanian, but foreign citizenship. Foreigners can stay legally and illegally on the territory of these countries. Foreigners who do not have a legal basis to stay in these countries are called illegal migrants. This is any foreigner who enters the territory of these countries illegally (entry outside the border crossing, entry with a forged or otherwise irregular travel document) or legally enters the country, but has not left the territory of these countries after the expiration of his legal residence [36]. The analysis of illegal migrants includes different categories: economic migrants, political migrants—asylum seekers, underage illegal migrants, women, families, victims of human trafficking, potential illegal migrants, illegal migrants as perpetrators of crimes and misdemeanors and domestic citizens as illegal migrants [37]. A refugee is a person who, due to a justified fear of persecution because of his race, sex, language, religion, nationality, belonging to a group or due to his political beliefs, is not in his country of origin and is unable to be placed under the protection of that State, as well as a stateless person who is outside the State of his or her previous permanent residence and who is unable or unwilling to return to that State. Migrant detainees should have the right, in the same way as other categories of persons deprived of their liberty, from the outset of their deprivation of liberty, to inform the person of their choice of their situation and to have access to a lawyer and a doctor. Furthermore, they must be explicitly informed, without delay, in a language they understand, of their rights and of the procedure to be followed in their case [38]. All persons are equal before the law and are entitled without any discrimination to equal protection of the law. Everyone has the right to freedom of thought, conscience and religion, and persons from ethnic, religious or linguistic minorities have the right to their own culture, religion and language. A prisoner who does not properly understand or does not speak the language used by the authorities has the right to receive relevant information immediately in a language he understands. Prisoners of foreign nationals will be provided with reasonable opportunities to communicate with appropriate diplomatic representatives. Refugee or stateless prisoners shall be given reasonable opportunities to communicate with a diplomatic representative of a State which assumes their interests or of any national or international body tasked with protecting such persons . Human rights, which are guaranteed by the European Convention on Human Rights and are particularly important for migrants, are:

• the right to dignity and free development of personality;

• the right to life;

• the right to inviolability of physical and mental integrity, i.e., prohibition of torture;

• prohibition of slavery, slavery-like positions and forced labor;

• the right to liberty and security;

• the obligation to treat a person deprived of liberty humanely;

• the right to a fair trial;

• the right to legal certainty in criminal law—prohibition of retroactive punitive measures, presumption of innocence, ne bis in idem, etc.;

• the right to citizenship;

• freedom of movement;

• freedom of thought, religion;

• prohibition of inciting racial, national and religious hatred;

• the right to asylum;

• the right to health care;

• the right to social protection and.

• the right to education [39, 40].

The only way to save migrants is to seek asylum in one of the safe countries. Asylum is the right to residence and protection enjoyed by an alien who, based on the decision of the competent body that decided on his application for asylum in the submitted state, was granted asylum or other form of protection provided by the Asylum Act. The RS Law on Asylum prescribes the principle of care for persons with special needs and states that asylum seekers with special needs will be taken into account in the asylum procedure, such as:

• minors;

• persons completely or partially deprived of legal capacity;

• children separated from their parents or guardians;

• persons with disabilities;

• the elderly;

• pregnant women;

• single parents with minor children;

• and persons who have been subjected to torture, rape or other severe forms of psychological, physical or sexual violence [41].

In addition to the Asylum Act, an asylum seeker enjoys a number of rights guaranteed by other relevant laws. The following rights are in question:

• An asylum seeker shall not be penalized for illegal entry or stay, provided that he submits an application for asylum without delay and provides a valid explanation for his illegal entry or stay;

• The competent authorities will take all available measures to maintain family unity during the asylum procedure as well as after obtaining the right to asylum. A person who has been granted the right to asylum has the right to be reunited with members of his family. If a person applies, the right to asylum will be granted to a member of his family who is outside the territory of the state in which he is applying for asylum. A person who has been granted subsidiary protection has the right to family reunification in accordance with the regulations governing the movement and stay of aliens;

• An alien who has expressed his intention to seek asylum has the right to be informed of his rights and obligations during the entire asylum procedure;

• An asylum seeker can use free legal aid and representation from UNHCR and non-governmental organizations whose goals and actions are aimed at providing legal aid to refugees;

• Asylum seekers who do not understand the official language of the procedure will be provided with free translation services into the language of the country of origin, i.e., into a language they understand. He may hire a translator of his choice and at his own expense;

• The asylum seeker has the right to contact authorized UNHCR officials at all stages of the asylum procedure;

• All documents in the procedure are delivered personally to the asylum seeker or his legal representative. It is considered delivered in writing when received by any of the above persons;

• The asylum seeker will be provided with a hearing by a person of the same sex, i.e., he will be provided with an interpreter or interpreter of the same sex, except when this is not possible or is disproportionately difficult for the body conducting the asylum procedure;

• The asylum procedure will take into account the specific situation of persons with special needs seeking asylum, such as minors, persons completely or partially deprived of legal capacity, children separated from parents or guardians, persons with disabilities, the elderly, pregnant women, single parents with minors and persons who have been subjected to torture, rape or other severe forms of psychological, physical or sexual violence;

• An unaccompanied minor, as well as a legally incapable person who does not have a legal representative, the guardianship authority will, before submitting the request for asylum, appoint a guardian, in accordance with the law. The guardian must be present at the hearing of the unaccompanied minor, i.e., the incapacitated person;

• Every asylum seeker has the right to be heard orally and directly by an authorized official of the competent organizational unit of the Ministry of the Interior, on all facts relevant to the recognition of the right to asylum or the granting of subsidiary protection;

• The data on the asylum seeker, which are obtained during the asylum procedure, are an official secret.

4. Conclusions

Having in mind the exposed matter, as well as the goal of the publication, we can point out that for every human being and action, it is necessary to start from ourselves. At the individual level, we must constantly work on ourselves, on our individual, improve, strive to help ourselves and others, to understand other people’s problems, needs, differences, to be objective, because we are all just one segment, part of the system. At a higher organizational and hierarchical level, the basis of action and protection of human rights is ethics and legality in action. After that come those entities within the system that evaluate and control our work. Finally, when the oversight mechanisms within the system are exhausted, there is external control, which must be multisectoral and independent, control that seeks control in order to improve the operation and functioning of the system, and not control for control itself. The recipe is in partnership with the society and the convict community, because we all have a common goal, a better and safer society through successful resocialization in the rehabilitation of convicts, and finally there are those who will evaluate the work and operation of the system, control and direct it.

It should be noted that the key to successful control is to determine the system of responsibility of all actors in the system of execution of criminal sanctions, which must be understood as follows: Responsibility is primarily based on a properly established and organized chain of command. Accountability implies respect for the principle that rules and regulations exist in order to be respected, and any violation of them must be punished. Responsibilities are based on the existence of mechanisms of civil control and supervision of all security actors, including the system of execution of criminal sanctions. Accountability implies the existence of a set of rules, procedures, methods and resources established by law to ensure that the control and supervision of the system of execution of criminal sanctions functions effectively and efficiently, as well as that the security sector fully performs its tasks.

In the end, we all have a special and personal responsibility as individuals, as part of society, responsibility for everything that has been done and not done, just the above-mentioned key and message of this publication is that we must improve and improve every day, primarily on an individual level and strive to through good deeds and understanding of others, we understand ourselves, the environment, society and diversity.