Challenging Cases

27th July 2010

It has been an exciting two weeks with two judgments coming out of Irish Courts relating, in different ways, to the question of prison conditions.

The case of Mulligan v Governor of Portlaoise Prison and Anor grabbed a lot of headlines as it concerned the practice of slopping-out in Irish prisons and its impact on the health and wellbeing of Mr Mulligan. The Court found that the conditions in which Mr Mulligan was held did not cross the threshold necessary to conclude that his treatment was inhumane and degrading. The judge did state, however, that the situation in Portlaoise compared favourably to that of prisoners in other prisons, such as Mountjoy and Cork, where the practice of slopping-out in overcrowded conditions could be assessed in a different way.

And last Friday, the Supreme Court issued a judgment in the case of MJELR v Rettinger which concerned the sending of Mr Rettinger to Poland to serve the remainder of his prison sentence. Mr Rettinger opposed his transfer under the European Arrest Warrant (EAW) saying that conditions in Polish prisons are such that if returned he may be subjected to treatment which is inhumane and degrading. As part of the argument, Mr Rettinger’s legal team pointed out that systemic overcrowding in Polish facilities was found to breach Article 3 of the European Convention on Human Rights (ECHR) in the case of Orchowski v Polandlate last year.

The Supreme Court was very clear that when deciding on transfer under the EAW, the Courts here need to consider whether prison conditions in Poland breach human rights standards. The Court stated that Mr Rettinger’s statement has not been challenged by the Polish authorities or the Irish Department of Justice, and that Polish authorities did not provide any information to contradict his evidence. This, in light of the consequences for Mr Rettinger should he be returned to Poland, is not sufficient to make an informed decision as to whether he should or should not be transferred there.  It directed the High Court to consider whether there is a “real risk” of Mr Rettinger being subjected to treatment that would breach his rights under the ECHR, and stated that cases such as Orchowski are of clear relevance here.  Most importantly, the test that is to be applied here is one developed under the ECHR, thus bringing the standards developed by the European Court of Human Rights to the very centre of judgments by the courts in Ireland.

It is true that for the individual prisoners involved, the outcomes of these two cases may not necessarily be what they hoped for: Mr Mulligan’s argument that his treatment had negative impact on his health has not been upheld; Mr Rettinger faces another hearing in the High Court and the outcome of that hearing may still be an order to surrender him to the Polish authorities.  However, from the point of view of future legal challenges, both cases constitute an important step in the development of the protection of prisoners’ rights in Ireland. Mr Justice Mac Menamin’s statement regarding the difference in conditions in the various prisons, we would argue, opens the possibility of future successful legal challenges of slopping-out in Irish prisons, and should now force the State to consider all possible ways of eliminating this practice as soon as possible. It is also difficult to imagine that after the Rettinger case, a different test would be applied to prison conditions here should any prisoner raise the impact of overcrowding on their fundamental human rights. Let’s hope that successful cases are not far off

Agnieszka Martynowicz is IPRT's Research & Policy Officer.

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