IPRT is committed to promoting and supporting the development of prison litigation in Ireland. Since 2009, we have co-hosted with the ICBA and the DSBA a series of law seminars. This series has provided CPD accredited expert seminars for barristers and solicitors on topical issues of prison law and also provided a platform for exchange of ideas and information between leading practitioners in this area.
We have also provided support and assistance for both barristers and solicitors involved in prison litigation. This has involved research on legal developments internationally or at the ECHR level, identifying potential expert witness, and directly providing expertise and information on the operation of the prison system. We will continue to provide this support and we would welcome contact from any practitioners who would like assistance with relevant litigation. We are also working with the Voluntary Assistance Scheme of the Bar Council and the Public Interest Law Alliance to explore further how both professions can become more involved in public interest prison work. We are very eager to involve practitioners more in all aspects of our work and would be delighted to have the involvement of more professionals as members of IPRT. Details about individual and company membership are available here.
This is the fifth prison law bulletin, produced on a quarterly basis. Should lawyers come across any interesting cases relating to penal law either in Ireland or abroad, IPRT would be grateful if you could email firstname.lastname@example.org to notify us of these developments so that we can possibly include them in future bulletins. Any suggestions on the format or content of this bulletin would also be greatly appreciated!
Among the highlights of this bulletin are Irish High Court decisions on the transfer of sentenced persons and remand; a large volume of new ECHR prison conditions cases; UK decisions on slopping out and on media interviews with prisoners; and a potentially significant US case on solitary confinement.
Outline of Contents:
1. Irish Case-law
2. ECtHR Case-law
3. UK Case-law
4. US Case-law
1. Irish Case-law
H v Governor of Wheatfield Prison & Anor  IEHC 492
Date of delivery: 23/12/2011
The applicant in this case successfully argued that his detention in Wheatfield Prison was unlawful due to an error in law made by the sentencing District Court Judge.
On July 7, 2011, the applicant’s wife (the second respondent) issued a District Court summons returnable for hearing on September 7, 2011. Therein, the wife contested that the applicant had failed to pay maintenance arrears in the sum of €3,600. The summons was headed as relating to the Enforcement of Court Orders Act 1940; s. 8 (as amended by the Enforcement of Court Orders (Amendment) Act 2009; s.2). The applicant received no warning regarding actions that may be taken against him should he fail to pay the sum in question. Namely, he may be held liable in contempt or otherwise imprisoned. Furthermore, the summons failed to contain any penal endorsement as required by O. 46B, r. 6(2) of the District Court Rules 1997 (as amended). On September 7, 2011, the summons came before Judge Connellan, who accepted jurisdiction for the matter. Due to the applicant’s non-payment of maintenance, Judge Connellan convicted and sentenced him to seven days imprisonment for contempt of court. Judge Connellan did not warn the applicant that he was liable to be found in contempt of court. Furthermore, he did not give the applicant any real opportunity to pay the maintenance arrears before finding him in contempt.
S. 8 of the Enforcement of Court Orders Act 1940 (as amended by s. 2 of the Enforcement of Court Orders (Amendment) Act 2009) requires the District Court to enact the notice requirement of s. 6 of the 1940 Act. Thus, where a District Judge considers imprisonment to be a possible option, when an application is made by a maintenance creditor seeking enforcement under s.8, the Judge may treat the application as an application for a summons under the (new) s. 6. If so, the application is governed by the requirements set out in s.6 (2). S. 6(2) (b) requires that the summons “contain details of the consequences…of a failure to comply with an instalment order and in particular the possibility of imprisonment.”
The applicant did not receive notice that failure to comply may lead to his imprisonment, despite the explicit requirements laid out in s. 6(2) (b) of the 1940 Act.
Hogan J. found that the District Judge had no jurisdiction to impose a custodial sentence upon the applicant due to his non-compliance with this jurisdictional prerequisite. With regard to Order 41, r. 8 RSC requires that a penal endorsement must be contained within the relevant court order if it seeks to invoke the coercive contempt jurisdiction of the Court. The summons of July 7, 2011 did not contain any such endorsement.
Accordingly, Hogan J. found this to be a ‘clearly manifest error’ on the part of the learned District Judge in both the exercise of his statutory contempt jurisdiction under the 1940 Act, and the requirements provided for within O. 46B, r. 6 (2) of the District Court Rules relating to penal endorsement. Thus, Hogan J. found that in a case such as this, the District Judge is required to provide the husband with adequate warning of the potential consequences of his failure to comply with the maintenance order, and also to give him fair opportunity to do so. The District Judge in this case was also obliged to consider whether the applicant’s financial circumstances necessitated variance of the maintenance order.
Hogan J. held that the District Judge erred in law in sentencing the applicant to seven days imprisonment. For the reasons mentioned above, Hogan J. directed the applicant’s release pursuant to Article 40.4.2 of the Constitution.
Caffrey v The Governor of Portlaoise Prison  IESC 4
Date of delivery: 01/02/2012
The appellant in this case appealed against the High Court’s decision to refuse an enquiry into the lawfulness of his detention under Article 40.4 of the Constitution. The appellant was convicted of murder and sentenced to life imprisonment in England. He served 12 years of punitive tariff (minimum term to be served) in England before being transferred to Ireland. The remainder of his sentence was preventative. The appellant argued that as he had served 12 years in prison his tariff would expire on March 23, 2010. As Irish law does not permit the use of preventative detention, his continued incarceration would be unfounded. A majority of the Supreme Court upheld the High Court’s decision asserting that the appellant was sentenced to life imprisonment for murder in England. The same sentence would be applied to an individual convicted of murder in Ireland. There is no discretion in sentencing in either jurisdiction; life imprisonment for murder is a mandatory sentence. As such there is no incompatibility between the sentence set in England and the punishment prescribed by Irish law for a similar offence [para. 29]. Section 7(10) of the Transfer of Sentenced Persons Act, 1995 stresses the need to look at the nature of a sentence and not just its duration. Chief Justice Denham held that the sentence at issue in this particular case was one of life imprisonment. This requisite does not expire within the lifetime of the sentenced prisoner. Consequently, this sentence was for life, not twelve years. The twelve year tariff in England does not alter the nature of the sentence [para. 30]. The appellant is therefore serving a legitimate sentence for life imprisonment in Ireland. Irish law now governs the management of his sentence and for this reason the appellant’s appeal was rejected.
Mr. Justice Fennelly dissented from the Court’s judgement on the basis that the appellant’s on-going detention was for preventative purposes, purposes which are ultimately incompatible with Irish law. Thus, he concluded that the appellant’s detention was unlawful and an application pursuant to Article 40 was appropriate. Mr. Justice Fennelly would have allowed the appeal and ordered the appellant’s release.
Yeagar v Judge O’ Sullivan & Ors  IEHC 67 Date of delivery: 20/03/2012
The applicant in this case sought to quash an order of the Circuit Court convicting him of assault and sentencing him to imprisonment for four months with recognition for time served. He argued that due to spending 21 weeks on remand prior to his conviction in the District Court, he would ultimately serve a sentence greater than the six month maximum for the charge of which he was convicted. If a person is found guilty of assault under section 2 of the Non-Fatal Offences against the Person Act 1997, he is liable to a fine or to imprisonment (not in excess of six months) or both.
The applicant was imprisoned in Mountjoy prison following his conviction in the Circuit Court. On admission to Mountjoy he was accompanied by a temporary warrant. This warrant specified that he had been imprisoned for a “period of four months with credit for any time served” [para. 6]. Due to his time spent on remand awaiting trial in the District Court and a month served of that sentence, the applicant’s solicitor was of the opinion that he had already been imprisoned for the equivalent of his Circuit Court sentence. The habeas corpus application sought failed due to the prison governor’s release of the applicant as a result of the content of the temporary warrant. The governor released the applicant upon the first representation of his solicitor as he believed it was unsafe to detain him. This release was in error following the provision of the final committal warrant, which specified four months detention “making allowance for any part of the original sentence already served” [para. 6]. The applicant was held on remand in this instance due to bail being denied for reasons surrounding his identity. Therefore, although remand is a deprivation of liberty, Charlton J held that the applicant’s detention on remand was due to the unavailability of bail. The applicant would not have been detained on remand had it been possible to prove his identity. Thus, the High Court relied upon the precedent set out in The People (DPP) v Fitzpatrick  IEHC 2 where Finnegan J held that “time spent in custody is not of necessity taken into account in arriving at a sentence”. However, Charlton J did infer that future arguments may be made regarding the amount of time spent in detention on remand awaiting trial, if such time in custody is not properly accounted for it may amount to an important error of jurisdiction by the District Court, or on appeal, by the Circuit Court. With regard to this particular case, Charlton J concluded that it was unnecessary and inappropriate to rule if the same could ever give rise to a judicial review. The applicant in this case benefited from early release. This particular application for judicial review could also be denied on discretionary grounds as the Circuit Court’s order is now spent.
Media Report of Assault Case at St. Patrick’s
A prison officer, captured on CCTV allegedly assaulting an inmate at St. Patrick’s Institution for Young Offenders, has lost his High Court bid to prevent a disciplinary hearing on the matter. The officer denied the alleged assault on a 17 year old remand prisoner in the exercise yard of St. Patrick’s Institution. The alleged assault occurred after the prisoner supposedly defied a direction made by other prison officers.
The prison officer originally sought an adjournment of this disciplinary hearing to allow a complaint to be made to the Data Protection Commissioner. On refusal of this adjournment, the officer instituted High Court judicial review proceedings against the prison governor and the Irish Prison Service. Within those judicial review proceedings, the officer requested that the CCTV footage be erased on the grounds that its use would be in breach of his data protection rights. He argued that this breach arose due to the absence of warning notices identifying the use of CCTV cameras. Birmingham J ruled that the officer’s case was “devoid of merit”.
Media Report of Prisoner Challenging Disciplinary Proceeding
Kenneth Ruth, a prisoner at Wheatfield Prison, has challenged sanctions imposed upon him following a routine visit with his partner and mother. Mr. Ruth was strip searched following an incident which involved him placing his hand inside his pocket immediately after releasing it from his partner’s hand during visitation. He was then detained in a solitary cell for four days. On January 23, 2012, three CCTV stills were placed on his bed, at which point he was given only one minute to review the images. Mr. Ruth maintains these images showed no evidence of any illegal objects being passed between him and his partner. The Prison Service held an inquiry under Rule 76 of the Prison Rules. Mr. Ruth received 60 days punishment which included no phone calls, evening recreational activities, or access to prison shops. All visits during this time were screened and his partner was prohibited from visiting. Mr. Ruth claims that his punishment was enforced without a proper disciplinary hearing. He further contends that the determination made against him is unreasonable and unjust. He was denied access to the actual CCTV footage, and was not advised of his right to enter a plea in negotiations. The court heard that both Mr. Ruth’s mother and partner were of reputable character.
Mr. Ruth sought orders from the High Court to repeal the Prison Governor’s determination that he violated prison regulations by accepting an illicit object from his partner. He also sought orders to revoke the Governor’s decision to enforce 60 days punishment on him, and to prohibit his partner from visiting him. He contends that his detention and segregation for four days was unlawful. In addition to these declarations, Mr. Ruth sought to suspend the proposed punishment until the conclusion of these proceedings. The High Court granted leave to bring this challenge, however it refused to grant a stay on punishment without the Prison Service’s presence in court.
2. ECtHR Case-law
Mitrokhin v Russia 35648/04  ECHR 112 Date of delivery: 24/01/12
The applicant in this case successfully argued that his detention in remand prison no. IZ 22/1 in Barnaul had been in contravention of Article 3 of the Convention as the conditions of his detention were inhuman and degrading.
The applicant complained that he was detained in cells which were infested with bed bugs, lice and cockroaches and were so overcrowded that the inmates had to take turns to sleep. They were not provided with blankets, sheets or pillows and had to sleep on dirty old mattresses. Laundry was only done once monthly. The toilet afforded no privacy and was only 0.8 meters away from the dining table which was unhygienic. Moreover, newly admitted detainees were only given a medical examination five days after admission which resulted in inmates suffering from illnesses such as tuberculosis, syphilis, gonorrhoea, scabies and fungal infections, and HIV-positive detainees, being placed in the cell where the applicant was detained. Medicine was also rarely prescribed. On account of the conditions of the applicant’s detention in the remand prison, the Court held that there had been a violation of Article 3. He was awarded €6,000 in damages.
Reiner v. Germany 28527/08  ECHR 96 Date of delivery: 19/01/12
The applicant argued that his continuing preventative detention, since January 2000, was in violation of his right to liberty under Article 5 of the Convention as he was now 74 years of age, was considered 80% disabled and suffered numerous illness including prostate cancer therefore could no longer be considered dangerous to the public. The Government argued thathaving regard to the applicant’s previous disposition to commit property and fraud offences, his continuing preventive detention was still proportionate despite his state of health and his age as he could still commit non-violent offences and therefore remained a threat to society.
Finding in favour of the Government, the Court held that the applicant was not incapable of committing further acts of fraud as this type of criminal behaviour does not require ‘particular physical fitness’. His preventive detention was therefore considered lawful and there was no violation of Article 5.
István Gábor Kovács v. Hungary 15707/06  ECHR 58 Date of delivery: 17/01/12
The applicant alleged that his detention in overcrowded cells in Szeged prison amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.The applicant submitted that he had to share cells, with an average of 16 sq metres’ ground surface, with up to 7 people, not counting furniture. Furthermore, prisoners were only entitled to spend about an hour daily outside of their cells which meant he was confined to the small living space for 23 hours a day which he claimed was most unbearable during the hot summer months. The Court noted that the occupancy rate in Hungarian prisons was 118% in 2008, 124% in 2009 and 133% in 2010 which demonstrates the significant overcrowding problem. It was held that the applicant’s detention in cramped cells, in conjunction with the fact that he remained in these cells for 23 hours daily, failed to respect human dignity and therefore reached the threshold required for a violation of Article 3. The applicants Article 8 rights were also breached due to restrictions on family visits to once a month. He was awarded €10,000 in damages plus costs.
Krivošejs v. Latvia 45517/04  ECHR 54 Date of delivery: 17/01/12
The applicant, who was diagnosed with an inherited cyst in his brain, is currently serving a sentence in Jelgava prison for numerous offences including aggravated murder and robbery. Relying on Article 3, he claimed that the medical assistance provided to him in prison was inadequate and as a result his medical condition deteriorated. He further argued that he should be released on account of this deterioration in his condition. The Court noted that despite a growth in the applicant’s cyst, medical practitioners concluded, after two separate examinations, that this was not affecting the applicant’s health in any way and did not require any particular treatment [para. 77]. Therefore, the Court concluded that the medical assistance provided to the applicant was adequate and there was no violation of Article 3. The Court also rejected the applicant’s complaint about his continued detention despite an alleged deterioration in his condition as the overall medical assistance being provided in the prison was adequate and his compliant was therefore ‘manifestly ill-founded’.
Fetisov and Others v. Russia 43710/07  65 Date of delivery: 17/01/12
This case involved an application by six detainees who complained that the conditions of their detention in various Russian prisons were so harsh that they constituted inhuman and degrading treatment in contravention of Article 3 of the Convention. Some of the applicants further complained about the absence of an effective domestic remedy relying on Article 13. In particular, all applicants complained that the cells in which they were detained were severely overcrowded, often lacking bed space. However, after close examination of prison documents the court found that each prisoner had approximately four square meters at their disposal and a bed to sleep on during their time in remand prisons in respect of their basic human dignity. Therefore, none of the applicants Article 3 rights had been violated.
However, in relation to breaches of the applicants Article 13 rights, the Court found that the Russian Government failed to provide an effective domestic remedy in each of the applicant’s cases. Consequently, all six applicants Article 13 rights were breached. It was held that the finding of this violation constituted sufficient just satisfaction for each applicant.
Harkins and Edwards v United Kingdom 9146/07  ECHR 45
Date of delivery: 17/01/12
Following an order to extradite the applicants to the US, they made a complaint to the European Court arguing that if their extradition were to proceed they would be at risk of being sentenced to the death penalty or to life imprisonment without parole, in contravention of Article 3. Mr Harkins, a British national, is accused of killing a man during an armed robbery. Mr Edwards, a US national, is accused of intentionally shooting two people, one of whom was killed and the other seriously injured.
The applicant’s first claim, that they could be given the death penalty in contravention of Article 3, was dismissed as the US authorities made assurances to the British Government that the death penalty would not be sought for either applicant. These assurances were “clear and unequivocal…and must therefore be accorded the presumption of good faith” [para 86]. Both applicants were also unsuccessful in relation to their arguments that a sentence of life imprisonment without parole would amount to inhuman and degrading treatment. In Mr Harkins case, the Court was of the opinion that if a life sentence were imposed, it would not be ‘grossly disproportionate’ [para 139]. He was 20 years of age when the offence was committed, he was not suffering from a psychiatric disorder and the murder was committed in the process of an armed robbery, an aggravating factor. Therefore, the Court held that there was no risk of treatment reaching the threshold required by Article 3 if Mr Harkins was extradited and sentenced to life without parole. In the case of Mr Edwards, who faces a discretionary life sentence without parole, the Court also concluded that he failed to reach the threshold required by Article 3. The trial judge in the US would not impose such a sentence unless all aggravating and mitigating factors were considered and Mr Edwards was convicted of pre-meditated murder, for which life imprisonment would not be a grossly disproportionate sentence. Therefore the extradition of both applicants to the US would not be in contravention of Article 3.
Vinter & Others v United Kingdom 66069/09  61 Date of delivery: 17/01/12
The applicants, Mr Vinter, Mr Bamber and Mr Moore, are serving mandatory life sentences for murder. Mr Vinter was convicted of murdering his estranged wife while out on licence after serving 9 years for murdering a work colleague. Mr Bamber was convicted of murdering his adoptive sister, her two children and his parents for financial gain. Mr Moore was convicted of murdering 4 men for sexual gratification. The three applicants were given whole life tariffs due to the serious nature of their crimes. Therefore, they can only be released from custody at the discretion of the Secretary of State on compassionate grounds. The applicants complained that their imprisonment without hope of release was cruel and amounted to inhuman and degrading treatment in contravention of Article 3.
In each case the British High Court had decided that a whole life tariff was required due to the callous and brutal nature of the applicant’s offences. This conclusion was reached following a fair and detailed consideration of each case and could therefore not be considered ‘grossly disproportionate’ according to the ECtHR. Therefore, there was no violation of Article 3 in the case of any of the applicants.
Iglin v Ukraine 39908/05  ECHR 38 Date of delivery: 12/01/12
The applicant, who is currently serving a life sentence, complained that the conditions of his pre-trail detention in Dnipropetrovs’k prison, including the physical, sanitary and healthcare facilities, had been inhuman and degrading in contravention of Article 3 of the Convention. He further claimed violations of Article 6 due to inadequate time to familiarise himself with his case and breach of Article 13 due to the lack of an effective domestic remedy.
The applicant alleged that his basement cell in the pre-trial detention centre lacked ventilation and natural light, the toilet facilities were dirty and often blocked and he was only allowed to shower once a week. Additionally, he claimed that when shaving and cutting their nails, detainees were handcuffed to the wall. In relation to healthcare provisions, the applicant alleged that after being hit on the head and sustaining a head injury which bled, oozed pus and caused him nausea and vomiting, he was refused proper medical assistance and only provided with bandages and oxygen. The Court rejected the Governments claim that the applicant’s detention conditions were “adequate and sufficient to meet his basic needs” and instead found that collectively, the conditions of his detention were inhuman and degrading within the meaning of Article 3.
It was also held that the 32 hours the applicant was given to familiarise himself with his case file were insufficient, in breach of Article 6. Article 13 was also violated due to the lack of an effective domestic remedy. He was awarded €15,000 in non-pecuniary damages for breach of his Convention rights.
Todorov v Ukraine 16717/07  ECHR 30 Date of delivery: 12/01/12
The applicant, who suffers from a number of serious illnesses including a serious eye disease, complained under Article 3 that during his seven year detention in Simferopol no. 15 pre-trail Detention Centre his healthcare arrangements were inadequate and caused him to lose his sight in one eye. He further complained that his pre-trial detention had been too long in contravention of Article 5 and that he had not received a fair trial as required by Article 6 of the Convention as he was not given access to a lawyer.
The Government argued that although the applicant was offered the required eye surgery he had refused to consent to it. However, he alleged that his reason for refusing the treatment was because he had been advised by medical professionals that the success of the surgery would be at risk unless his other illnesses were treated first (namely scabies and eczema). The Court held that when a person is placed in custody, the Government is obliged to attend to his/her healthcare needs including pre-existing conditions [para 53]. Failure to do so, in the applicant’s case, resulted in the deterioration and eventual loss of his eyesight which the Court concluded was a violation of Article 3.
In relation to the applicant’s five year pre-trial detention the Court held that Article 5 had been violated as there had to be exceptional reasons to justify keeping the applicant detained on account of his deteriorating health which there were not in this case. The applicant was also successful on his Article 6 argument. He was awarded €18,000 in damages for the violations to his Convention rights.
Shahanov v Bulgaria 16391/05  ECHR 20 Date of delivery: 10/01/12
The applicant complained that his detention in Varna prison between December 2002 and February 2009 violated his rights under Articles 3 and 8 of the ECHR due to the poor and unsanitary conditions in the prison. The cells were damp and draughty, had no running water, the toilet and the canteen were infested with rats and the applicant was only permitted to bathe once every two weeks. Moreover, the applicant was forced to use a bucket as a toilet in front of other prisoners which he found stressful and humiliating. The Court held that Article 3 had been violated as the cumulative effect of these conditions of detention amounted to inhuman and degrading treatment. The applicant also successfully argued that the monitoring of his correspondence during detention violated his right to privacy under Article 8 and that the excessive length of the criminal proceedings against him violated his Article 6 rights. He was awarded €7000 in compensation (plus €2000 toward costs).
Česnuleviĉius v Lithuania 13463/06  ECHR 1 Date of delivery: 10/01/12
This case concerned the death of the applicant’s son, A.Č., while he was serving a prison sentence in Pravieniškės. A.Č. had been attacked 3 times between the 4th and 6th of August 2000 before dying from his injuries on the 7th of August. Relying on Article 2, the applicant complained that the authorities had failed to protect the life of his son while he was in custody. Additionally, he claimed that the investigation into his son’s death had been inadequate, letting those responsible go unpunished.
The Court found that the prison authorities, having noticed the injuries to A.Č’s face and finding masks and metal bars where the first incident took place, must have been aware that A.Č’s life was in serious danger yet failed to keep him in protective custody. Furthermore, the nurse who treated A.Č. after the second beating had failed to disclose the injuries until she was put under investigation after his death. Furthermore, although A.Č. was suffering form traumatic shock, he was not treated adequately for this which may have been because the medical doctor who treated him did not have a medical licence. Therefore, the Court held that although A.Č’s safety was at risk, the prison authorities had not ensured a safe environment for him. They had failed to detect, prevent and monitor violence from other inmates and, once they were aware of it, had further failed to respond to it. The Court therefore concluded that the authorities had failed to protect the right to life of A.Č. while in custody, in violation of Article 2.
The Court also found that the investigation into the death of A.Č. had been ineffective as there was a failure to carry out basic investigative practices and assemble a case despite 11 witnesses being identified. This was also a violation of Article 2. The applicant was awarded €30,000 in non-pecuniary damages and €2,500 in pecuniary damages plus costs.
Ananyev & Others v Russia 42525/07  ECHR 21 Date of delivery: 10/01/12
The applicants complained that the conditions in the remand prisons in which they were detained were so harsh that they amounted to inhuman and degrading treatment in contravention of Article 3 of the Convention. They further complained that Article 13 had been violated due to the lack of an effective domestic remedy available to them.
Mr Ananyev was held in Smolensk remand prison for two months during which time he was detained in a cell which contained 13 sleeping spaces but was always filled well beyond capacity, with the number of detainees sometimes reaching 21. Mr Bashirov was detained in remand prison Astrakhan for 3 years during which time he was detained in cells made to accommodate 10-12 people but which he claims were always very overcrowded. His claims were supported by annual reports which also acknowledged the poor sanitary and hygienic conditions of this remand prison. In both the applicant’s cases, the cells lacked natural light and the lavatory pan was often located less than one and half meters away from the dining table. The applicants remained inside these cramped conditions for 23 hours a day. The Court therefore determined that the cumulative effect of these conditions amounted to inhuman and degrading treatment within the meaning of Article 3.
Furthermore, the Court held that Article 13 had been violated as the Russian authorities failed to provide an effective domestic remedy to the applicants in relation to their claims. Having regard to these violations, the Court awarded Mr Ananyev €2,000 and Mr Bashirov €13,000 in non-pecuniary damages.
Laduna v Slovakia 31827/02  ECHR 2102 Date of delivery: 13/12/2011
The applicant alleged that his rights under Articles 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1 were breached during his detention on remand and his ensuing term of imprisonment.
The applicant was accused of committing a number of serious offences. For this reason, he was held on remand pending trial from September 1, 2001 to February 9, 2006. On the latter date he began to serve a nine year sentence for robbery. Throughout his detention on remand, the applicant claimed he was only allowed visits once a month. Visits lasted a maximum of thirty minutes (statutory minimum) and were conducted through use of a partition. The applicant alleged these visits were shorter than those afforded to convicted persons. The applicant was only permitted to listen to two pre-selected radio stations (chosen by prison administration). Convicted prisoners could choose the radio station they wished to listen to from their cells. The applicant alleged that he was not allowed to watch television whereas convicted prisoners could watch it every day. Convicted prisoners could also attend cultural events, partake in sporting activities and work in various hobby groups. The applicant was prohibited from doing so. He complained that there was no justification for the restrictions imposed, particularly for individuals such as him who at the relevant time had not been found guilty. When the applicant received money from his family he was obliged to use half of it to repay his debt to the State. If he refused to do so his right to buy groceries and other items in the prison shop would have been suspended. The applicant was left with between €7 and €15 a month following his repayment. Due to the low quality of prison food, he claimed it was necessary for prisoners to purchase supplementary food from the prison shop. The applicant relied upon Article 13 in alleging that there was no effective remedy available to him regarding the above complaints.
The Court held that the restrictions imposed on family visits and the failure to provide television broadcasts for the applicant amounted to interference with Article 8 (respect for private and family life). It found that there was no objective and reasonable justification for restricting the visiting rights of those on remand to a greater extent than those convicted. The Court further held that those restrictions created a disproportionate measure, in contravention to the applicant’s rights under Article 14 in conjunction with Article 8. Furthermore, the Court found no objective justification for different treatment regarding television broadcasts between remand prisoners and their convicted counterparts. The Court held there was no violation of Article 1 of Protocol No. 1 on the basis that he was not prohibited from buying supplementary food, only limited from doing so. The Court found no violation of Article 13 as it cannot be interpreted as necessitating a remedy against the state of domestic law [para. 90]. The Court awarded non-pecuniary damages to the sum of €9,000 and €600 in respect of costs and expenses.
Trosin v Ukraine 39758/05  ECHR 331 Date of delivery: 23/02/2012
The applicant successfully argued that restrictions placed upon family visits during his post-trial detention violated Article 8 of the Convention. Article 34 was also breached due to Ukraine’s failure to comply with its obligations regarding monitoring of the applicant’s correspondence with the Court, by domestic authorities.
The applicant was sentenced to life imprisonment at Odessa SIZO. From October 4, 2005 to February 16, 2010, he was allowed family visits no more than once every six months. Thereafter, he received his family once every three months. Visits lasted for a maximum of four hours and no more than three adult visitors could be present at any one time. The applicant sustained good relations with four family members. Prison visits were conducted through use of a glass partition. All conversations were heard by a prison officer. From February to October 2006, the applicant’s correspondence with the court was accompanied by a covering letter from the detention centre, briefly stating the contents therein.
The Court held that the restrictions placed upon the applicant regarding his contact with family members, was in violation of Article 8. The Court also found Ukraine in contravention of Article 34 as a result of the domestic prison authority’s monitoring of the applicant’s correspondence with the Court. The applicant was awarded €5,000 in damages.
Arseniev v Moldova 10614/06 and 10620/06  ECHR 513
Date of delivery: 20/03/2012
The applicant in this case alleged that the conditions of his detention were inhuman, resulting in a deterioration of his health and a violation of Article 3 of the Convention. He complained of a violation of Article 6 due to his inability to pay court fees. He claimed his right of access to a tribunal, pursuant to Article 6, was violated as a result. He further complained that he was unable to submit a typed appeal in cassation in the criminal proceedings against him and that his lawyer had not defended him well.
The applicant was detained in Prison no. 13 in Chişinău, Prison no. 3 in Leova and in Pruncul Hospital for Detainees. During his hunger strike the applicant was detained in cell no. 117 (in Prison no. 13) where there had been no light bulb on the first day and no bed linen provided for the duration of his detention there. Water gathered on the floor due to a broken tap and clogged sink. The cell was constantly humid. It was located in the basement and was not heated. The applicant could not attend to personal hygiene in this cell. He further complained that all detainees were transported to court hearings in a single vehicle, regardless of whether they suffered from infectious diseases (such as tuberculosis) which they could transfer to others. They would then spend hours in confined conditions in courthouses awaiting their own hearings. The applicant complained of the low quality of food provided and the lack of food received on the day of his court hearing. Medication was not distributed on those days either and the applicant claimed he contracted prostatitis and rheumatism while in prison.
The applicant thus alleged that his detention in Prison no. 13 (which was used as a pre-trial detention facility [para. 11]) was undertaken in conditions worse than those usually afforded to convicted persons. He was detained in overcrowded cells without the possibility of removal for more than one hour per day. He shared his cell with five others when it was only suitably sized to house two inmates. Furthermore, the applicant was unable to see a priest of the Russian Orthodox Church during his detention.
The Court found that the applicant was detained in inhuman conditions of detention especially with regard to the severe overcrowding experienced, (six persons in a cell measuring 7.9 square metres, this amounted to 1.3 square metres per person, the statutory minimum is 4 square metres per person). The applicant spent up to 23 hours a day in these conditions over several years. For this reason, the Court held that the conditions of the applicant’s detention violated Article 3 of the Convention.
The Court found no evidence of a violation concerning access to court and thus rejected the applicant’s claim under Article 35 §§ 1 and 4 of the Convention. Furthermore, it could not uphold the applicant’s complaints under Article 6 due to his failure to observe other formal requirements with regard to the criminal proceedings. The State was not responsible for the relationship between the applicant and his lawyer and thus could not be held accountable for any grievances in this instance.
The Court awarded the applicant €15,000 in non-pecuniary damages for his prolonged detention under inhuman conditions. The Court furthered awarded €1,000 for incidental costs and expenses.
Kondratyev v Ukraine 5203/09  ECHR 2128 Date of delivery: 15/12/2011
The applicant in this case successfully argued that both his detention and the length of his detention were unlawful under Articles 5 § 1 (c) and Article 5 § 3 of the Convention respectively. He was also successful in his claim that the medical care received for his tuberculosis infection was inadequate and thus violated Article 3 of the Convention.
The applicant suffers from chronic infiltrative tuberculosis of the left lung. In November 2009, he was diagnosed with a consolidated fracture of the left knee cap and a moderately expressed contracture of the left knee joint. He alleged that the medical care he received during detention, concerning both his tuberculosis infection and his knee injury, was insufficient. He therefore alleged that his detention was unlawful given his deteriorated health.
The applicant was remanded in the Sevastopol City Temporary Detention Centre (ITT), pending his transfer to Simferopol Temporary Investigative Isolation Unit no. 15 (the Sizo). On July 28, 2007 he informed ITT of his active form of TB and was placed in a special cell. The Tuberculosis Healthcare Centre in Sevastopol (the TB Centre) confirmed this diagnosis on February 8, 2008 and asserted that he required a prolonged course of chemotherapy. On May 15, 2008, he was admitted to the TB ward of the Sizo, where he received a series of anti-TB drugs and some vitamins and hepatoprotectors. The applicant did not receive chemotherapy. On March 9, 2009, while being transported to the ITT, the applicant suffered a knee injury. He complained to the ITT administration and was seen by a doctor who recommended he consult a phthisiatrician. On his return to the Sizo on March 12, 2009 he was examined by a Sizo doctor but did not make any complaints regarding his health. Six days later the applicant complained to the Sizo doctor of severe pain in his left knee. An X-ray was performed on March 20, 2009 demonstrating that his knee cap was broken and displaced. The applicant claims the Sizo failed to supply him with any medical care for this injury.
The Court held that there was no violation of Article 3 of the Convention in respect of the applicant’s knee injury. It found that the treatment measures instituted by the prison authorities were appropriate. However, the Court held that Article 3 was breached in relation to the applicant’s TB infection. It concluded that the conditions of the applicant’s detention were incompatible with the state of his health at the relevant time. Therefore, failure to provide appropriate medical care for the applicant in respect of his TB infection contravened Article 3 of the Convention.
The Court also held that the applicant’s detention from October 6, 2007 to October 24, 2008 and December 23, 2008 to April 6, 2010 was unlawful due to the domestic court’s failure to provide reasons for his continuing detention and its failure to indicate a time limit on said detention. The Court subsequently upheld the applicant’s complaint of unlawful detention pursuant to Article 5 § 1 (c). Furthermore, the Court held that the domestic courts’ failure to advance any reason for the applicant’s continued detention amounted to a violation of Article 5 § 3 regarding the overall length of the applicant’s detention.
However, the Court did not find a violation of Articles 6 § 1 and 13 of the Convention in relation to the overall length of the proceedings against the applicant. The overall length of the proceedings was not deemed excessive nor was it unreasonable according to the Court. The applicant was awarded €10,000 in respect of non-pecuniary damages.
3. UK Case-law
British Broadcasting Corporation (BBC) & Anor, R V Ahmad  EWHC 13 (Admin)
Date of delivery: 11/01/12
In this case the applicants, BBC, applied for a judicial review to allow them conduct and broadcast a face-to-face interview with Mr Ahmad. Mr Ahmad is a British citizen who has been detained in HMP Long Lartin without trial for 7 years pending a decision to extradite him to the US where he is accused of raising funds for terrorist organisations in Afghanistan and Chechnya. The BBC contends that the refusal by the Secretary of State to allow the interview to be conducted is a violation of the right to freedom of expression guaranteed by Article 10 of the Convention.
The current policy on prisoners’ access to the media, set out in document PSI 37/2010, essentially allows for visits by journalists where either the broadcaster is “seeking to highlight a miscarriage of justice or some other issue of legitimate public concern.”
The BBC complained that the Justices Secretary’s refusal to allow them conduct and broadcast an interview interfered with Article 10. They argued that given the strong public interest in the case, and the difference between TV interviews and other forms of coverage, the public had a right to receive recorded information about Mr Ahmad. The applicants further argued that due to the uniqueness of Mr Ahmed’s case, it should be considered exceptional. A broadcast interview would demonstrate to the public the impact of the lengthy detention on Mr Ahmad and allow them to make their own judgments about his credibility
In response, the Justice Secretary argued that allowing prisoner’s direct access to TV could result in detainees running media campaigns attempting to justify their behaviour. This could potentially damage public confidence in the criminal justice system and have a negative impact on victims of crimes. The Secretary also argued that a broadcast interview was not necessary, given the scope for the BBC to correspond with Mr Ahmad via letter and conduct written interviews.
In finding in favour of the applicants, the Court held that the refusal amounted to a disproportionate interference with Article 10. It was found that the PSI 37/2010 allowed for exceptions to the general policy and “it is difficult to think of a case which would fall within the exception if not the present one”. Therefore, the BBC was granted permission to conduct and broadcast an interview with Mr Ahmed from inside the prison.
Grant and Gleaves v Ministry of Justice  EWHC 3379 (QB)
Date of delivery: 19/12/2011
The claimants focused their complaints on HMP Albany’s prison sanitation regime. They argued, on behalf of 360 long term prisoners, that their rights under Articles 3 and 8 of the Convention were violated by the regime under which they were detained in HMP Albany between 2004 and 2011. This included the use of buckets as toilets in locked cells and the subsequent emptying of buckets at a sluice (slopping out). They complained that during periods of staff changeover, roll calls, and lunch, prison officers would not allow them access to the toilet facilities if required. Their primary complaint involved the night-time sanitation system. 24 prisoners reside on each self-contained landing. Each electronically controlled door allows the release of one prisoner per landing at any one time, to use the toilet facilities. Prisoners are entitled to three exits per night, lasting nine minutes each. Due to discrepancies with the electronic locking system, the duty governor could call in additional officers when necessary to manually open cell doors and enable prisoners to use the toilet facilities. Prisoners could also contact duty officers by intercom to ask for release. In spite of these provisions, it was common knowledge that there would be times, day or night, when a prisoner could not be promptly released from his cell when he wished to use the landing toilet facilities. It was for this reason that each cell contained a bucket and lid, wash bowl, soap, water and a towel. The claimants argued that the buckets were in constant use. The defendants denied this and claimed they were only used in exceptional circumstances.
The claimants argued that requiring a prisoner to urinate or defecate into a bucket violates Article 3 as it amounts to degrading treatment. They further contended that their rights under Article 8 (right to respect for private life) were breached by this procedure, when regarded within the prison context as a whole, given the allegedly insufficient space, light and ventilation in each cell. They alternatively submitted that even if the prisoners’ Article 8 rights were not directly breached, the risk that this sanitation regime may breach Articles 3 and 8 was unacceptable and as such amounted to a breach of Article 8.
Hickinbottom J found that the sanitation regime was not ideal, particularly with regard to the unreliable night-time electronic locking system, and the use of buckets in itself. However, he noted the routine lock in times during the day, and the efficacy of the night-time lock in when the electronic system was working. He therefore concluded that the system in place rarely required a healthy prisoner to urinate in a bucket and seldom required one to defecate in a bucket. If such actions were necessary, early opportunity was provided to empty buckets, and the appropriate cleaning equipment was supplied within a spacious area without time constraints being imposed. Based on these findings, Hickinbottom J held that the sanitation regime in place did not drastically increase risk to prisoners’ health. Based on the evidence presented, it appeared that neither claimant used a bucket as often as alleged; in fact they were very rarely required to use this system. Furthermore, this particular sanitation regime did not cause either the claimants or any other prisoner, any distress, anxiety, feelings of humiliation or any other harm. Nor did the claimants or any other prisoner make a simultaneous complaint regarding the prison sanitation scheme through channels instituted to deal with prisoner complaints. As a result of these findings, the claimants’ arguments were dismissed.
Media Report of Challenge to Access to Children
Two female prisoners at HMP Downview challenged decisions made by the Justice Secretary, Kenneth Clarke, refusing them permission to take Childcare Resettlement
Leave. Mrs. Justice Lang in the High Court ordered the decisions to be reconsidered due to the Justice Secretary’s misinterpretation of the relevant policy. The court found that the Justice Secretary “fettered his discretion” by failing to consider the personal circumstances of each prisoner. Kenneth Clarke failed to have regard to Article 8 of the European Convention on Human Rights. His misinterpretation and subsequent application of a standardised policy, acted in aversion to human rights law and legislation. The task of accommodating individual cases was not unduly onerous according to the court. Furthermore, Mrs. Justice Lang acknowledged that Childcare Resettlement Leave is available to both male and female prisoners.
Childcare Resettlement Leave (CRL) is a form of temporary license afforded to certain prisoners. To be eligible for CRL, a prisoner must verify that she/he holds exclusive caring responsibility for a child under the age of 16. The prisoner must also satisfy the following conditions:
- Must be resident within semi-open or open conditions;
- Must be classified as suitable for such conditions;
- Or must reside within a mother and baby unit and must have other children being cared for outside of prison.
CRL is available for a maximum of three nights every two months.
4. Northern Ireland Case-law
Olchov, Re Judicial Review  NICA 73 Date of delivery: 20.12.2011
This appeal arose as a result of the refusal of the Parole Commissioners of Northern Ireland (the Commissioners) to grant the appellant an oral hearing regarding his recall to prison. The appellant argued that the Commissioners are required to provide such a hearing in accordance with the Parole Commissioners Rules (Northern Ireland) 2009 (the 2009 Rules).
The appellant in this case was sentenced to a determinate custodial sentence under the Criminal Justice Order (NI) 2008 (the Order) of 18 months. This sentence comprised of a 14 month license period and 121 days custodial period. He was released on March 8, 2010 as a time served prisoner. His release was subject to a license issued under Article 17 of the Order. The appellant’s license was revoked by the Secretary of State on April 2, 2010 under Article 28(2) of the Order. The appellant was taken into custody on November 8, 2010, when consideration of his recall commenced. An oral hearing was requested through written representations made by the appellant’s solicitors dated January 21, 2011 and February 17, 2011. Decisions dated February 4, 2011 and March 2, 2011, showed the Commissioners’ refusal to grant the appellant’s direct release or to arrange an oral hearing panel. The recall of prisoners while on licence is governed by Chapter 4 of the Order. A prisoner may be recalled to prison if the Secretary of State believes it necessary in the public interest or if it is so recommended by the Commissioners. The recall is referred to the Commissioners in either case. The Commissioners decide whether or not to direct immediate release. Regardless of the form of sentence imposed, whether it is indeterminate or fixed, the Commissioners decide whether a prisoner, recalled on licence, should be released. When a case is referred to the Commissioners under Articles 18 or 28(4) of the Order, the 2009 Rules apply. Article 28 governs the release of recalled prisoners. Part 2 of the 2009 Rules provides that Commissioners may regulate their own procedure regarding any matter they consider appropriate. Part 3 contains provisions for prisoners to seek an oral hearing. The appellant relied upon Part 3 in relation to release following his recall to prison. Part 4 refers directly to “recalled life, indeterminate and extended custodial prisoners”. Its design ensures a swift hearing for those prisoners recalled. The appellant’s attempt to use Part 3 to grant an oral hearing would prevent his expeditious relief under Part 4, a situation which the Court could not allow due to its disadvantageous nature for determinate custodial sentenced prisoners.
The Court found that provisions regarding an oral hearing, as provided for in Part 3, do not encompass determinate custodial sentence prisoners. Thus, the appeal was dismissed.
Bassey, Re: Judicial Review  NICA 67 Date of delivery 21/11/2011
The appellant in this case, a Nigerian national, was detained by the Immigration Service as an illegal entrant with a view to removal. After nine days of detention he was granted bail. The appellant contested this decision to detain and remove him, asserting that he was not an illegal entrant and as such should not have been treated in this way, nor should he have been detained with a view to removal. He sought to rely upon a derived Community law right (Directive 2004/38/EC) stemming from his daughter’s Irish nationality, (his daughter acquired Irish nationality by virtue of her birth in Belfast). This right entitles the holder to be in the United Kingdom. The appellant considered himself a holder of this right at all material times.
When applying for a visitor’s visa for the United Kingdom, the appellant declared his intention to vacation in the UK for seven days. The Court later heard that his true intention was to explore the possibility of remaining on a long term basis. Thus, the Court upheld the trial judge’s view that the appellant deceptively entered the United Kingdom. The Court further confirmed the onus placed upon the Immigration Service to reasonably investigate the facts pertaining to the appellant’s eligibility to enter the United Kingdom before determining his removal and detention pending removal. This onus is embedded in the provisions of a previously asserted Community law entitlement to be in the country [Chen v Secretary of State for the Home Department ].
The Court quashed the decision to treat the appellant as an illegal entrant and to remove him. His detention was considered unlawful as a result. By virtue of this unlawful detention the appellant was entitled to damages. The matter was referred back to the trial judge for assessment with an order to consider the initial deception as a contributory factor in the appellant’s detention.
Reuter, Re Judicial Review  NIQB 6 Date of delivery: 13/01/2012
The applicant, a former prisoner of HMP Magilligan, sought relief relating to his detention by the United Kingdom Borders Agency (the respondent), including a claim for damages as a result of this detention. He challenged the delay in executing his deportation order and the unlawful detention which resulted. The applicant claimed that this delay was unlawful and ultra vires and was in breach of his right to liberty under Article 5 ECHR. The applicant experienced a period of extended detention while being moved from one immigration removal centre to another, due to the allocated escort company’s failure to arrive at Magilligan Prison and escort the applicant.
Treacy J held that the respondent was responsible for rectifying this problem as a matter of urgency. By failing to do so they needlessly extended the applicant’s detention. He found that the respondent failed to act with reasonable diligence and expedition in this situation, concluding that the continued detention of the applicant was unlawful. The applicant’s claim for damages is to be heard at a later date.
O’ Rawe, Re Judicial Review  NIQB 4 Date of delivery: 10/02/2012
The applicant sought relief for his removal from the Foyleview Resettlement Unit in HMP Magilligan, without charge or enquiry. This removal made him ineligible for home leave. He argued this removal was incompatible with Article 8 of the European Convention.
Prisoners situated in Foyleview enjoy semi-open prison conditions. However, their placement here is conditional upon their good behaviour. Removal from Foyleview results in the prisoner’s re-entry to their original pre-release home scheme. The prisoner is not eligible for a greater amount of home leave than he would have received had he remained in Foyleview. A complaint was made against the applicant by another prisoner, G, relating to an incident which allegedly occurred while prisoners were returning to Belfast by train on Christmas home leave. The applicant was later identified for allegedly bullying G and informed of his removal from the Foyleview unit in accordance with Section 15 of the Foyleview compact, pending further investigation. The applicant denied any involvement in the incident; however, he did acknowledge its occurrence. The applicant was removed from the Foyleview unit until all investigations had concluded and the selection panel could properly assess the applicant’s eligibility for return. The applicant claimed procedural fairness had not been met. He relied upon the proposition that there is a right to know and a right to respond.
The court held that the high threshold of public law unreasonableness in terms of the alleged delay was not crossed. Furthermore, the applicant would be provided with all relevant materials pertaining to the investigation, and afforded the opportunity to present his case to the selection panel in person. The application was dismissed on all grounds.
5. US Case-law
Gamez & Ors. v Ryan and Pratt United States District Court – District of Arizona
This suit addresses the thousands of prisoners regularly at risk of serious physical and psychological harm due to extreme social isolation and sensory deprivation imposed upon them when solitarily confined. The Plaintiffs have brought this action in an attempt to gain injunctive relief, compelling the Defendants to immediately provide the named Plaintiffs and the class members they represent, with constitutionally sufficient health care and with protection from conditions of confinement deemed unconstitutional.
The Plaintiffs reside under the care of the Arizona Department of Corrections. Therein, they are entirely dependant upon the Defendants for the provision of basic health care. However, the Plaintiffs allege that health care, (referring to medical, mental health and dental care) provided by the Defendants, is grossly inadequate and exposes prisoners to the elevated risk of suffering serious harm, including, unnecessary pain and suffering, preventable injury, disfigurement, amputation and death.
The Plaintiffs further allege the Defendant’s lack of commitment to the minimum requirements corresponding to the provision of health care within state institutions. They claim that the health care provided for by the Defendants in Arizona’s prisons falls below the constitutionally protected minimum requirements and fails to meet the primary health needs of inmates. Lack of, or inadequate response to the desperate requests of critically ill inmates forms another facet to this class action suit. Responses such as “be patient”, “it’s all in your head”, or “pray” to be cured, serve as testimony to this issue within this federal law suit. The Plaintiffs assert the Defendant’s deliberate indifference to the considerable risk of inmate pain and suffering, including death, all of which occur due to the Defendants’ violation of the Eight Amendment, in their failure to supply minimally sufficient health care.
This law suit advances the potential for serious harm and the actual serious harm suffered by prisoners, due to their isolated detention within supermax Special Management Units (SMUs) in ‘cruel and unusual conditions of confinement’. The Plaintiffs allege further violation of the Eight Amendment through the Defendant’s deliberate indifference to the considerable risk of pain, suffering and death occurring as a result of their complete failure to provide minimally sufficient conditions to prisoners in isolation.
Media Report of California Prison Hunger Strike
In December, three prisoners detained in California’s Administration Segregation Unit (ASU) in Corcoran State prison wrote a letter to the Californian Department of Corrections and Rehabilitation threatening to go on hunger strike if the ‘inhuman conditions’ in the unit, which they argue violate their constitutional rights, were not improved (access a copy of the letter here: http://sfbayview.com/2011/new-hunger-strike-petition-for-improved-conditions-in-administrative-segregation-unit-at-corcoran-state-prison/).
Administrative Segregation is used in the USA for a variety of reasons, most commonly as a form of punishment for rule violations, to remove violent prisoners from the general prisoner population or for the ‘protection’ of at risk prisoners. Prisoners in ASU are essentially in solitary confinement for 23 hours a day, are provided with only basic personal necessities (bar of soap, toothbrush, toothpaste) and have no access to TV, education, training or rehabilitative programmes. ASU’s are essentially a prison within the prison. Inmates can be put in ASU’s indefinitely, meaning they can remain in solitary confinement with no end in sight (some prisoners in the US have been in solitary confinement for over 15 years).
The letter by inmates in Corcoran State prison was ignored and their hunger strike began on the 28th of December 2011. The prisoners, all housed in the Segregation Unit, are petitioning for access to TV/radio in their cells, adequate and timely medical care, phone access, and access to educational and rehabilitative programmes. This marks the third in a series of hunger strikes by prisoners in the State in less than three months all in objection to treatment of detainees in segregation units and the use of indefinite solitary confinement. It is hoped that these strikes by prisoners will bring about the necessary reform to reduce the use of ASU’s in the USA.