9th November 2009
By Agnieszka Martynowicz, in The Irish Times
THE EUROPEAN Court of Human Rights on October 22nd issued judgments in two cases dealing with structural overcrowding in prisons and the implications of this situation for the enjoyment by prisoners of the right to freedom from inhuman and degrading treatment, as guaranteed by Article 3 of the European Convention on Human Rights.
The cases of Orchowski -v- Poland (Application No 17885/04) and Norbert Sikorski -v- Poland (Application No 17599/05) raise a number of significant issues for Ireland, where overcrowding is chronic and has been a feature in many prisons since the 1980s.
The applicants are both currently serving prison sentences in Poland. On a number of occasions, each was held in cells shared with other prisoners and had less than the statutory three square metres of living space to each person.
Relying on statistics provided by the Polish Prison Service and showing occupancy levels across the prison system at 110 per cent, the applicants made numerous complaints to the national prison authorities.
Their claims were dismissed by the Prison Service which relied on national regulations giving governors the power to restrict the amount of space for each prisoner when the prison population exceeded the number of places in the system.
In its judgment, the European court stated that it was established beyond reasonable doubt that for substantial periods of time, the applicants’ cells had been overcrowded, leaving them with less than the minimum “humanitarian” amount of space.
This lack of space had been made worse by lack of exercise, lack of privacy, unhygienic conditions and frequent transfers between prisons. The court held unanimously that the distress and hardship endured by the applicants had exceeded the unavoidable level of suffering inherent in detention, in violation of Article 3 of the European Convention on Human Rights.
In this, the court agreed with a 2008 judgment of the Polish Constitutional Court which stated that the serious and chronic nature of overcrowding in Poland could in itself be taken as inhuman and degrading treatment.
It is well established that seriously deficient physical conditions in prisons contravene provisions of Article 3.
The European Court has found, for instance, that overcrowding and its consequences for individual prisoners (such as a negative impact on their health) may constitute inhuman and degrading treatment in certain circumstances (Kalashnikov -v- Russia, 2003).
Most importantly, it stated that there did not have to be any intention to humiliate or debase the prisoner on the part of state authorities for the treatment to achieve such threshold and that it is the combination of physical conditions and/or treatment afforded that constitutes a breach of prisoners’ rights (Peers -v- Greece, 2001).
The two Polish cases provide further clarification of the extent of State obligations under Article 3 of the convention by stating that overcrowding in itself is a breach of prisoners’ human rights.
For a number of years, when considering prison cases, the European Court of Human Rights has relied on the standards developed by the European Committee for the Prevention of Torture and on its reports on prison conditions in member- states of the Council of Europe.
The committee, which has visited Ireland on four occasions, has regularly brought the seriousness of overcrowding to the attention of Irish authorities.
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.
In 2009, the Inspector of Prisons Judge Michael Reilly assessed conditions in Mountjoy Prison and a number of other establishments as “inhuman and degrading”.
The issue of overcrowding has also been regularly highlighted by the visiting committees and by organisations including the Irish Penal Reform Trust. The Government cannot, therefore, claim lack of knowledge or lack of understanding of the seriousness of the situation.
Prisoners affected by overcrowding in Ireland have a number of legal avenues open to them and indeed prison conditions have been the subject of constitutional challenges. In State (C) -v- Frawley in 1976, the court recognised the unenumerated right in the Constitution to be free from inhuman and degrading treatment.
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.
Agnieszka Martynowicz is research and policy officer at the Irish Penal Reform Trust: www.iprt.ie