Irish Prisons and Article 3 ECHR

Agnieska Martynowicz of the IPRT has an excellent article in today’s Irish Times about the relationship between the right to freedom from inhuman and degrading  treatment protected under Article 3 of the European Convention on Human Rights and structural overcrowding in prisons. Liz has blogged about the overcrowding problem in Irish prisons and the Inspector of Prisons Annual Report here and Agnieska draws attention in her article to the view which the European Committee for the Prevention of Torture has taken on Ireland’s prisons:

In 1998, it assessed the problems of overcrowding in Irish prisons as “endemic”. It repeated its concerns in 2002 and in 2006 the committee identified overcrowding as an exacerbating factor for other systemic problems such as poor cell conditions, poor regimes and inter-prisoner violence. The committee is also very clear that expanding the prison estate is not a solution to the problem.

The recent cases of Orchowski -v- Poland (Application No 17885/04) and Norbert Sikorski -v- Poland (Application No 17599/05) concerned prisoners who, on a number of occasions were held in cells shared with other prisoners and had less than the statutory three square metres of living space to each person. They were able to  establish beyond reasonable doubt that for substantial periods of time, the applicants had not been provided with the minimum “humanitarian” amount of space. The court held that the distress and hardship endured by the applicants had exceeded the unavoidable level of suffering inherent in detention. Article 3 of the European Convention on Human Rights was, accordingly, violated.

Agnieska provides an astute assessment of the consequences of the ECtHR Article 3 jurisprudence for Ireland:

While to date there has been no case decided in Irish law specifically challenging prison conditions as inhuman and degrading, the European Convention on Human Rights Act 2003, requiring public bodies to act in compliance with the European Convention on Human Rights, adds another legal basis for possible challenge.

Under the Act, the courts are also under a duty to interpret Irish law in a manner compatible with the convention as interpreted by the European court.

Considering the fast-developing human rights standards in this area, future challenges at the domestic level under the Constitution or the European Convention on Human Rights Act 2003 can be anticipated.

The two judgments against Poland signify that the European court may well look favourably on cases brought against Ireland in similar context.

While the urgency of the current overcrowding crisis is clear in human rights terms, there may also be significant financial consequences for State inaction in terms of payment of any damages ordered in successful cases.

This possibility and the wider consequences of a successful challenge should be considered by the Irish Government in their handling of the issue.

Inspector of Prisons, Annual Report 2008

The recently published Annual Report 2008 of the Inspector of Prisons presents a bleak picture of prisons in Ireland, with overcrowding, the mental health of prisoners and lack of sentence management in particular being highlighted.

The problem of overcrowding was described in the Report as “acute”. This is highly problematic, given that overcrowding stretches staff and monetary resources, compromises the availability of rehabilitative, educational, visiting and medical facilities, and exacerbates tension and violence. For example, in Limerick Prison the number of female prisoners was almost treble the design capacity, a situation described as “inhuman treatment”. Moreover, the situation in Mountjoy was of such gravity that the inspector wrote to the Department and to the Irish Prison Service in Feb 2009 expressing his fear that this practice could “lead to possible serious injury or loss of life.” The Inspector further noted the prevalence of drugs in Irish prisons, and the growing issue of gangs and inter-prisoner violence. Such problems are exacerbated by overcrowding. Furthermore, slopping out continues in Mountjoy, a practice deemed by the Inspector and his predecessor as inhuman and degrading treatment. Indeed, the Court of Session in Scotland in Napier v Scottish Ministers (2004) found that the practice of slopping out in overcrowded conditions breached the applicant’s rights under Articles 3 and 8 of the ECHR, leading to the payment of damages by the Scottish Government. There is no comparable successful case against the Irish State, which would could have expedited the removal of this practice.

In addition, the Report laments the absence of a proper sentence management scheme which would address the aetiology of the crime, programmes to pursue in prison, and other means of preventing recidivism. In this regard the Inspector recommends a sentence plan for all convicted prisoners for 12 months or more. This would cover the period from committal to release, and recognizes the autonomy of the person by involving the prisoner in discussion. However, the Report added that some progress in this regard is evident in the Irish Prison Service’s piloting of the “Integrated Sentence Management System” which moves to a prisoner focused model in which a personalized plan is made based on the needs of the particular individual.

Given that the prison population in Ireland seems on a steady upward arc, and given the apparent abandonment of the Thornton Hall prison plans, it is difficult to see how overcrowding can be alleviated. The Inspector called for reconsideration of the holding of illegal immigrants in prison, and welcomed the proposed move away from imprisoning fine defaulters. His progressive suggestion of temporary release combined with restorative justice initiatives could remedy overcrowding to a degree. However, it seems that an even more radical change is required, wherein imprisonment is regarded truly as the option of last resort, and where for non-violent crime the presumptive punishment is a community sanction or one based on restorative justice. Limiting the imposition of prison sentences to grave and violent crimes will improve the protection of human rights for those who are imprisoned, and will free up resources for alterative measures for non-violent and drug offenders who need not be detained in this way.