Irish Penal Reform Trust

IPRT Prison Law Bulletin: No. 1 – Spring 2011

4th May 2011

IPRT is delighted to introduce practitioners to our first Prison Law Bulletin.

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 Prison 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 witnesses, 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.

IPRT envisages that the Legal Bulletin, produced on a quarterly basis, will be a source of prison-related case-law, identifying potential areas and issues for litigation and supporting lawyers already engaged in penal litigation.  The bulletin will provide summaries of significant cases dealing with prison conditions such as overcrowding, slopping out, regimes, healthcare, segregation, etc as well as sentencing matters.  Should lawyers come across any interesting cases relating to penal law either in Ireland or abroad, IPRT would be grateful if you could email 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! 

We hope this will be of use to practitioners and our intention is that we will issue a bulletin each quarter, with the next bulletin to come out at the end of Trinity Term. Finally, we are very eager to involve practitioners more in all aspects of our work and we would be delighted to have the involvement of more professionals as members of IPRT.  Details about individual and company membership are available at our website 

Outline of Contents

  1. Irish Case-Law
  2. ECHR Case-Law
  3. UK Case-Law
  4. US Case-law

Irish Case-law

Dokie v DPP [2010] IEHC 110                                                            Date of Delivery: 25/03/2011

The applicant, a non-national believed to be from Liberia, was arrested on 3 April 2008 when she arrived at Dublin airport with her 3 children on charges contrary to ss. 12(1)(a) and (2) and s. 13 of the Immigration Act 2004, for failing to produce on demand a valid passport or other equivalent document to an Immigration Officer/member of An Gárda Síochána and to give a satisfactory explanation of the circumstances which prevented her from doing so .  When the District Court in Dublin decided not to proceed with the case against the applicant on the basis that it was null and void, she was released from custody.  However, she was rearrested and charged pursuant to ss. 12(1)(a) and (2) and s. 13 of the Immigration Act 2004 for failing to produce the same documentation on the 29 May 2008. Counsel for the applicant successfully argued that the words purporting to create a criminal offence in s. 12 of the 2004 Act are too vague and imprecise.  Declaring s. 12 of the 2004 Act unconstitutional, Kearns J in the High Court held that while the section was designed as an immigration control mechanism, its vagueness was such “as to fail basic requirements for the creation of a criminal offence” and that as drafted “it gives rise to arbitrariness and legal uncertainty.”  He also found that s.12 breached Article 38.1 of the Constitution which provides that no person shall be tried on a  criminal charge save in due course of law, as well as Article 40.4.1 that no person shall be deprived of his liberty save in accordance with the law. Accordingly, Kearns J granted the applicant an injunction restraining the DPP from taking any further steps in prosecuting her under the Immigration Act 2004.

Sage v Minister of Justice & Ors [2011] IEHC 84                 Date of Delivery: 01/03/2011

Following a vicious assault perpetrated against him at Fort Mitchell Prison on 31 July 2002, the plaintiff took an action for damages for negligence against the Minister for Justice, the Governor of Cork Prison, Ireland and the Attorney General for negligence.  The fifth named defendant, Patrick Hogan, was one of the individuals who assaulted him.  The plaintiff had been sentenced to 10 years for manslaughter on 26 July 2002, for his part in fatally beating a man with an iron bar about the head.  William Roche, was convicted of murder in relation to the same event.  While on remand at Limerick prison the plaintiff’s bed had been set on fire, an act which he attributed to Roche.  Upon conviction the plaintiff was taken to Mountjoy prison and requested to be placed on protection for fear Roche, who was also imprisoned there, would attack him.  The prison authorities transferred him to Fort Mitchell prison for his own safety.  Upon admission there, he did not further request to be placed on protection owing to fears that Roche may have had contacts within that prison who could pose a danger to his safety. 

On his second day at Fort Mitchell, the plaintiff was set upon by fellow prisoners in the exercise yard and hit several times over the head.  The weapon was never retrieved, but it was agreed that it was most likely the metal leg of a chair which had been fortified by batteries to give it added weight.  The plaintiff sought damages for negligence on the basis that the authorities at Fort Mitchell failed to discharge their duty of care towards him by ensuring that he would not be permitted to come into contact with other prisoners who might have associations with Roche.  He also alleged that the fact that he was assaulted with a vicious instrument meant that there was inadequate searches and security in the prison yard at the time of the assault.  Irvine J dismissed the plaintiff’s claim on negligence, drawing attention to the fact that the plaintiff never apprised the authorities of Fort Mitchell of his desire to be placed in protective custody or about his ongoing fears in respect of Roche.  She also stressed that there was no evidence that the individuals who assaulted the plaintiff had any connection with Roche and distinguished the case of Creighton v. Ireland and Attorney General [2010] IESC 50 (discussed below) where evidence was adduced that the weapon used in the assault was most likely a Stanley knife which escaped detection at the point of entry, after which it was smuggled into the methadone dispensing unit for a second time.  In the instant case, Irvine J (at paragraph 34) said the weapon in question was not brought in from outside the prison.  Moreover, it could not be stated that it “should have been discovered in the course of one of the other search procedures in the prison”.

MJELR v Sawczuk [2011] IEHC 41                                          Date of Delivery: 04/02/2011

The respondent challenged his extradition to Poland on foot of three European Arrest Warrants on the basis that prison conditions in that country would breach his Article 3 right to be free from inhuman and degrading treatment or punishment under the ECHR.  He previously spent time in three Polish prisons and claimed that they were “unhealthy and overcrowded” – with up to 12 people in one cell – only one shower per week, and only “half a bread and half a cheese for the day which was insufficient to my needs”.  The Polish authorities submitted reports to the High Court that regulations specified that the residential area in a cell for a convicted person must be 3 m² (except a space of 2 m² will suffice, in exceptional circumstances), the prison population currently stood at 97% and food (at least one hot meal per day), clothing, living conditions, health care, hygiene facilities and out-of-cell activities were provided at a satisfactory and humane level.  Edwards J held that the respondent did not adduce evidence that his return to Poland would give rise to the “real risk” of his suffering inhuman and degrading treatment in prison.  In particular, he failed to provide any evidence about current prison conditions in Poland, such as an affidavit from a person presently in prison or recently released, or an account from Amnesty International or a Polish Prisoners Rights organisation - relying wholly on his past experience of three prison, which could not be taken to be indicative of all, or most, Polish prisons.  Accordingly, Edwards J ordered that the respondent be surrendered to the Polish authorities in accordance with s. 16 of the European Arrest Warrant Act 2003, as amended.

MJELR v Dunkova [2011] IEHC 36                                         Date of Delivery: 28/01/2011

A Roma woman challenged her surrender to the Czech Republic on foot of two European Arrest warrants so that she could serve the remainder of a sentence of 2 ½ years for a theft-type offence and a 1 ½ year sentence for a robbery-type offence.  She argued that her extradition raised issues relating to family rights under Article 8 of the ECHR and under the Constitution.  While Peart J in High Court accepted that the respondent suffered ill health, he stated that there was no evidence adduced that she would not receive whatever medication she needed by the prison authorities if surrendered.  In relation to her husband’s health problems, the judge accepted that the respondent’s rendition would mean that the burden would fall on other family members to assist him, but this alone was not a compelling reason not to surrender her.  Peart J also accepted that Ireland was the home of the respondent’s children and that they had no desire to return to the Czech Republic, even temporarily. This would impact on their ability to visit their mother if she were surrendered.  Observing that the imprisonment of any parent (or indeed any person) necessarily impacts negatively on family rights, Peart J stated that the court could only conclude that the respondent’s family rights trumped the competing right of the issuing state if “exceptional facts and circumstances” existed.  It was held that there were no exceptional facts in the instant case.  Accordingly, Peart J issued an order for the surrender of the respondent.

MJELR v Zielinski [2011] IEHC 45   Date of Delivery: 10/02/11

The applicant, a Polish national resident in Ireland, was the subject of an European Arrest Warrant issued by the Republic of Poland in August 2009, having being convicted to a number of robbery with violence offences in his country of origin.  Following an appearance before the High Court in November 2010 in accordance with s. 13 of the European Arrest Warrant Act, 2003, he was remanded in custody to Cloverhill prison pending the s.16 hearing on the matter. The instant case involved an application to be released on bail pending that hearing. The Minister for Justice objected to bail being granted on the basis that there was a real risk that the applicant would abscond and thus avoid serving his sentence in Poland.  Edwards J. affirmed that in bail applications involving both extradition and rendition, the principle articulated in The People (Attorney General) v O’Callaghan [1966] IR 501 should be followed – i.e. bail should be granted unless there is a likelihood that the prisoner will attempt to evade justice (by absconding or interfering with witnesses and/or jurors).  However, the O’Callaghan principles were neither designed nor intended to be of universal application and were relevant only to applications for bail where the prisoner had not yet been convicted of an offence.  Edwards J. held that there is no presumption in favour of granting bail to a convicted person whose rendition is sought by another E.U. state for the purpose of having him serve a sentence.  Secondly, a risk assessment is necessary to determine whether a real and significant risk exists that the prisoner would abscond, prior to granting or refusing bail.  Thirdly, influenced by the foregoing risk assessment, the Court must decide whether the requested person should remain in detention and, if not, subject to what conditions he might be released.  The applicant’s bail request was refused on the basis that a real and substantial risk existed that he might abscond and be unavailable for surrender to the requesting state pursuant to s. 16 of the 2003 Act.

Watters v Independent Star Ltd. [2010] IECC 1         Date of Delivery 03/11/2010,Watters,~language_en~

The plaintiff claimed that a sensationalist article in the Star on Sunday newspaper, owned by the defendants, published false and defamatory statements about him, by reporting that “prison sources” had implied that he had been involved in an illicit homosexual relationship with the high profile sex offender Larry Murphy in Arbour Hill prison.  The plaintiff, who was convicted for possession of child pornography, accepted that his own actions had meant that he did not enjoy a reputation of good character, but argued that the article in the Star on Sunday was nonetheless capable of damaging his reputation further.  Counsel for the defence also argued that it was not defamatory in this day and age to say that they were engaged in a homosexual relationship.  Moreover, rather than asserting the truth of their allegations, the defence relied on the fact that the plaintiff was incapable of being defamed by virtue of his own damning actions. Highlighting the relevance of the context in which the allegations were made, the judge rejected the contention that the plaintiff was a man “effectively of no reputation”, undeserving of any legal protection. In granting a declaratory order sought under section 28(1), a “correction order” under section 30(1), and an order prohibiting future publication of a defamatory statement under section 33 of the Defamation Act 2009, the court held that the plaintiff had a residual reputation capable of being damaged by the allegations in question, owing to his admission of guilt, his remorse and desire to be rehabilitated. 

Creighton v Ireland & Others [2010] IESC 50        Date of Delivery: 27/10/2010,prisons,~language_en~

The plaintiff was a prisoner in Wheatfield Prison in 2003 who was a victim of a violent, unprovoked Stanley knife attack while waiting for methadone, in an area which he claimed contained 20 people.  He suffered injuries to his face, stomach and flank and was awarded €40,000 damages in the High Court by White J, based largely on the assertion that an additional supervising officer would have probably led to an earlier intervention, resulting in lesser injuries to the plaintiff. A former governor of several English prisons had testified that the system of controlling entry of knives to Wheatfield was lax, the waiting area for methadone was overcrowded and that there should have been CCV covering the area, as well as a means of raising the alarm.  The defendants appealed against the award of damages, claiming that it is was based entirely on extrapolations from the English governor’s statements regarding numbers and safety, but not based on any concrete evidence.  Moreover, as Fennelly J observed, the crucial and decisive evidence relied on by the judge was given after the conclusion of all of the evidence and had never actually been part of the plaintiff’s case.  Accordingly, the damages award was set aside on the basis that the decision was unsupported by the evidence, but the case was remitted for further hearing.

DPP v Gilligan [2010] IEHC 345    Date of Delivery: 10/09/2010,prisons,~language_en~

The accused’s cell in Portlaoise prison was searched, resulting in the discovery of a number of prohibited items including a mobile phone and SIM card.  Following a disciplinary hearing the accused’s privileges were revoked for 56 days. He was also charged with possession of the mobile phone and SIM card contrary to s. 36 of the Prisons Act 2007.  The accused claimed that criminal punishment for the offence, on top of the prison disciplinary procedures, would amount to double jeopardy.  Counsel for the defence cited cases from the European Court of Human Rights on Article 6 of the ECHR on the issue of whether a right to legal representation arose for prison disciplinary procedures, on the basis that they were criminal proceedings.  By virtue of the disciplinary sanction imposed, the maximum sanction available - loss of remission of up to 14 days, and the fact that the European Court has not held that such loss of remission indicates criminal proceedings whereby Article 6 would be engaged, Ryan J in the High Court found that the prison disciplinary procedure in the instant case was an internal procedure and not a formal criminal trial. Since double jeopardy can only arise when there has been a previous criminal trial, the issue did not arise here.

Mulligan v Governor of Portlaoise Prison [2010] IEHC 269            Date of Delivery: 14/07/2010,prisons,~language_en~

This is a significant slopping out case, involving a political prisoner from the E Wing of Portlaoise prison.  The applicant was subject to a disciplinary hearing following a protest where he lost privileges, was placed in a closed confinement for 28 days, and denied phone calls or visits, save for legal visits. He was confined in his cell for a total of 22 hours a day and required to slop out, which he claimed was particularly onerous on him due to a pre-existing susceptibility to colorectal medical complaints.  While Mac Menamin J in the High Court held that there had been no violation of the applicant’s rights under the Constitution[1] or Articles 3 or 8 of the ECHR based on the totality of the regime at Portlaoise prison (the plaintiff enjoyed single-cell accommodation and spent a good deal of time out of the cell), he denounced slopping out as unacceptable.  In particular the judge criticised the continuing practice of slopping out in other Irish prisons such as Mountjoy, Limerick and Cork, where there is a lack of in-cell sanitation or running tap water compounded by multiple occupancy of cells, with prisoners often locked up for 23 hours a day, eating their meals in the presence of human waste.  IPRT is of the view that the Mulligan judgment leaves open the very real possibility of a successful legal challenge in relation to prisons where slopping out is combined with overcrowding and a more chaotic regime.[2]

MJELR v Rettinger [2010] IESC 45       Date of Delivery: 07/05/2010,prisons,~language_en~

The applicant sought an order preventing his extradition to Poland where he was to serve two years in prison for burglary, arguing that extradition would result in him being subjected to inhumane and degrading prison conditions in contravention of Articles 3 and 8 of the European Convention of Human Rights (ECHR).  The applicant served a previous sentence in a Polish prison where he claimed that he was detained in a cramped cell, there was an open toilet with just a curtain around it and that he was only allowed to shower once a week in a room with between 12 and 24 other prisoners.  He also claimed that polish prison officers would dole out physical punishments if he were to complain about such conditions. Delivering the Supreme Court judgment, Denham J stated that there was no definite evidence that the applicant would be sent to a prison of this nature.  Reports of the European Committee against Torture, Inhuman and Degrading Treatment or Punishment (CPT) from 1994, 2000 and 2004 were cited, which highlighted the poor physical conditions and problems with overcrowding in Poland and Eastern Europe.  However, evidence was adduced that the applicant would most likely be sent to a prison in the south-east of the country.  The prisons which were described as inhumane and degrading were in the north-west of the country. The court ordered the surrender of the applicant to Poland, on the basis that because it was unknown which prison the applicant would be sent to, it was uncertain that Article 3 would be violated.

Other Irish developments

On 6 August 2010 Leroy Dumbrell won a High Court action against the Governor of Castlerea prison challenging the lawfulness of his prolonged solitary confinement.  The High Court ruled that the applicant had been held in unlawful solitary confinement at Castlerea for more than five months.  Hedigan J said that the prisoner should be detained in accordance with prison rules and that it was not acceptable to keep him in solitary confinement for 23 hours a day.

UK Case-law

H and L v A City Council [2011] EWCA Civ 403            Date of Delivery: 25/03/2011

The appeal concerned a severely disabled couple, L and H, who worked in the disability movement, obtaining contracts from universities and other public bodies.  H was convicted of indecent assault of a seven-year old boy in 1993 and sentenced to two years imprisonment.  In late March 2009, the local authority in question received a letter from another local authority drawing attention to H’s 1993 sex offence conviction from 1993 and notifying it that he was facing trial for a similar offence on 26 June 2009.  The local authority convened a strategy meeting on 17 April 2009, attended by X, the service manager of the local authority’s safeguarding children service in which it was decided that the details of H’s previous conviction should be divulged to relevant organisations, that the university would cease H’s employment and that H would be asked to stand down from all bodies and committees with which he was involved.   Following the meeting X made a series of phone-calls to various organisations including the local authority’s disability service, the university and the Refugee Council informing them of H’s conviction, on the basis that he might use his disability work to “convince other people that he is a trustworthy individual” and may “as a result gain access to parents and ultimately their children.”  On 29 May 2009, the local authority wrote to H and L’s solicitor explaining that it proposed to share information about his conviction with other organisations, failing to make it clear that the information had already, in fact, been shared.  H and L discovered that the local authority had disclosed H’s conviction and the pending criminal proceedings from two service users on 27 May 2009. 

Counsel for the appellants argued before Lord Langan in the High Court that because H’s work did not bring him into contact with children, there was no “pressing need” to disclose his past convictions to all those with whom he did business.  He argued, moreover, that the disclosures made by the local authority were disproportionate because they failed to reflect this crucial factor.  According to the Court of Appeal (Civil Division) Lord Langan inappropriately likened the principle of proportionality to rationality and, moreover, failed to clearly distinguish between the different functions of the local authority and the court in respect of the tests they had to apply.  Allowing the appeal regarding inappropriate disclosure, the Court of Appeal emphasised the critical point that H did not work with children and condemned the manner in which the local authority divulged information about H’s past conviction to other organisations as “profoundly unfair”, by implementing its decision to disclose information behind H’s back and without giving either H or L any opportunity to have their say.  This approach was deemed to be “wholly inconsistent with the standards of procedural fairness mandated by both the common law and by Article 8 of the European Convention of Human Rights, citing W v United Kingdom 10 EHRR 29, paras [63]-[64] and R (x) v Chief Constable of the West Midlands Police [2004] EWCA Civ 1068, para [37] regarding the need to consult with the person whose information is to be disclosed and to give them an opportunity of making representations before the information is disclosed in order for a process to be fair and proportionate.  The Court of Appeal distinguished X’s telephone campaign from the later written protocol on disclosure prepared by the local authority, which was deemed to be much improved in terms of proportionality and fair procedures.

Qazi & Anor, R v [2010] EWCA Crim 2579        Date of Delivery: 04/11/10

The applicant was serving a sentence for fraud.  He applied to the court that his rights under Article 3 of the ECHR had been violated as his conditions of detention were not proportionate to his medical condition. The applicant required regular blood transfusions due to a condition called Beta Thalassaemia.  The court considered that the sentencing of the prisoner to a place where his medical condition could not be managed directly would amount to a breach of Article 3.  The court found that there had been no evidence brought in the sentencing of the claimant that his rights under Article 3 were going to be breached on the basis that conditions in the prison to which he was to be sent would not be adequate to meet his particular medical needs. However, the court held that more consideration should have been given when sentencing the claimant given his medical condition. His sentence was, therefore, reduced by 6 months.

Malcolm v Ministry of Justice [2010] EWHC 3389 (QB)        Date of Delivery: 21/10/10

The claimant who was subject to a restricted regime in a High Security prison, argued that he was not granted sufficient time each day in the open air.  11 days before he was transferred to HMP Whitemoor, the Acting Deputy Prisons and Probation Ombudsman upheld the Claimant's complaint that he was not being given enough outdoor time each day.  The claimant alleged that Article 8 had been breached, arguing that the loss or residual liberty “significantly increased stress arising from lack of purposeful activity, access to sunlight and exercise, together with physical discomfort and a general feeling of unfitness, and also disrespect of his human right to respect for his private life.”  While the court held that the prolonged detention in solitary confinement without daily access to one hour open air was unacceptable, it condemned the claimant’s cynical claim for damages.

King v Secretary of State for Justice [2010] EWHC 2522 (Admin)       Date of Delivery: 13/10/10 

A young offender challenged the internal disciplinary structure resulting in cellular confinement (e.g. segregation for punishment purposes), claiming that the system of adjudication and review involved a ‘civil’ component (namely the right of association) under Article 6 of the ECHR and that the governor was not an independent tribunal. Counsel for the Secretary of State argued that the contestation upon the issue of suspension of a 'civil right', if any, arose from the challenge by the claimant by way of judicial review to the penalty of cellular confinement, either because he was innocent of the disciplinary offence or because the penalty was disproportionate to that offence.  It was held that while the High Court is, without question, an independent judicial tribunal, the governor is not institutionally independent. A disinterested observer would conclude that “arrangements for the resolution of the disciplinary charge of disobedience within the setting of the custodial institution are palpably fair.” The High Court enjoyed full jurisdiction to review the issues which arose for consideration in this case. Dismissing the claim, Lord Justice Pitchford stated at paragraph 125: “It seems to me to confound reason, common sense and proportionality to require that whenever an inmate disputes a charge of disobedience, the consequence of which may be a modest punishment of cellular confinement, a special adjudicator should be appointed to decide the issue.”

Bary & Ors, R (on the application of) v Secretary of State for Justice & Anor [2010] EWHC 587 (Admin)                                                                   Date of Delivery: 19/03/10 

This claim under Articles 3 and 8 of the ECHR centred on the argument that detention of unconvicted persons prior to extradition/deportation for an indefinite period amounted to inhuman and degrading treatment.  The 6 claimants, classed as ‘high-risk’ offenders, (detained on suspicion of being international terrorists) were awaiting extradition to the USA. They were housed in the detention unit at Long Lartin and subject to a change of regime, which limited their interaction with other prisoners and access to recreation activities, as well as mental health facilities.  Two of the claimants had mental health disorders - severe depression and stress - which they claimed had worsened with the regime change.  The High Court considered these claims separately owing to their specific mental health needs, holding that while the mental health of the two claimants had deteriorated in some ways, there were other issues, external to their confinement, which contributed in such deterioration.  Accordingly, there was no violation of Article 3.  In relation to the other four detainees, Lord Justice Aikens found their status as high-risk prisoners meant that consideration had to given to their risk of escape, the risk they posed to other prisoners (specifically attempting to persuade and radicalize other inmates in alignment with their beliefs) and whether their conditions were purposefully intended to humiliate or punish them.  It was held that the change of the detainees’ regime. If they had been detained in solitary confinement, such a restricted regime would have been disproportionate to Article 8.  However, since they were detained together in the ‘high risk’ detention unit, there was no violation under Article 8.

Gill, R (on the application of) v Secretary of State for Justice [2010] EWHC 364 (Admin)

Date of Delivery: 26/02/10 

This case concerned an individual with a learning disability, who was serving a life sentence (with a four year tariff).  The applicant had served well over twice his tariff and was attempting to progress towards release. Owing to his learning disability, he had been excluded from participating in offending behaviour programmes. This was impeding his ability to be fully rehabilitated and he argued that his exclusion for such programmes constituted a breach of the Disability Discrimination Act 1995.  The applicant had progressed well in the prison; he engaged in work in the kitchen, had not been violent for several years, satisfied a number of drug tests and the probation board had been content for him to be transferred to a less secure facility. The applicant was concerned that eventual transfer to an open facility would not address his educational needs, because the previous prison had not helped him.  The court found that the applicant’s circumstances were covered by the disability act and that he had been subjected to discrimination from HMPS. The court concluded that offending behaviour programmes were not the only means of achieving rehabilitation and that there were other relevant paths to release from prison. The court also found that the applicant was entitled to a declaration from the Secretary of State admitting that he had failed in his duty to provide the applicant with any offending behaviour programme.

European Court of Human Rights

Payet v France 20/01/11 (not final – only press release available in English)

The applicant argued that his placement in a punishment cell following a second escape attempt amounted to inhumane and degrading treatment.  The cell was cramped, dark, badly ventilated and subject to flooding.  The toilets were not sectioned off and were close to the eating area.  The applicant who had been transferred 26 times because he was seen as an escape risk complained that security rotations were in direct violation of his right to a family life under Article 8. In addition to this, the applicant maintained that Article 13 was also violated as he was denied access to an effective remedy to appeal against the security rotations.  The court found that Article 3 and 13 had been violated but that Article 8 had not been infringed since the majority of prisons in which he had been detained were in close proximity to each other.

Iorga and others v Romania      Date of Delivery: 26/01/2011 

The applicants were the relatives of a prisoner who died while serving a 40 day sentence for the non-payment of a fine. They claimed that Article 2 of the European Convention on Human Rights was violated on the basis that the authorities had failed to protect the life of the applicant’s deceased relative and also failed to undertake a proper investigation into the death.  The deceased prisoner was suffering from severe alcohol withdrawal and following collapse was prescribed anticonvulsants. He was assaulted by his fellow prisoners and was examined by a doctor, who ordered a neurological exam and an EEG scan. The medical exams were not carried out but the deceased was placed in a different cell, where Prison officers instructed D.V. the “cell chief” to administer his medication.  D.V., a convicted murderer, assaulted the deceased but later administered the medication to the deceased who became drowsy.  Prison officers failed to adequately check on the deceased and the following day he was found unconscious in his cell.  He was transferred to an emergency unit where he died four days later. The cause of death was multiple contusions, skull fractures and cerebral oedema which were caused from repeated blows to the head with a blunt instrument. Two investigations followed the death. D.V. was held criminally responsible for the death and received a 16 year sentence. The second investigation was against the prison staff, however these proceedings were discontinued. The applicants maintained that the failure to properly investigate the staff was a violation under Article 2.

The court found that the authorities had failed to comply with prison rules which stated that prisoners serving sentences for minor offences should be segregated from those serving more serious ones. The deceased prisoner required specialist care in the first few days of his sentence as he was suffering from alcohol withdrawal, however he received no such care and the administration of his medication was entrusted to his cellmates. Additionally, the examination and scan which were ordered were never carried out even though the deceased sustained several blows to the head. The court ruled that prison overcrowding did not exempt the prison officers from their obligation to effectively watch over prisoners, nor did it not excuse states from complying with Article 2 of the convention.

Bazjacks v Latvia 71572/01 [2010] ECHR 1551     Date of Delivery: 19/10/10   

The claimant alleged that his confinement in a Latvian prison amounted to inhuman and degrading treatment and that he lacked an effective remedy. The case dealt with unsanitary conditions, allegations of ill-treatment, solitary confinement, being subjected to a harsh disciplinary regime, as well as medical exams and treatment (e.g. for beatings and TB) and complaints procedures.  The Latvian Government made a unilateral declaration accepting that the ECHR had been breached, offering €5,000 compensation. While the ECtHR rejected this declaration, it nonetheless dismissed all the claims - other than those relating to the poor physical conditions and lack of an effective domestic remedy - on the basis that that the rest were unsubstantiated.  It was held that the prison conditions could have been a factor in contributing to the applicant’s TB.  He was awarded €11,700 in non-pecuniary damages.

Trepashkin v Russia (no. 2) - 14248/05 [2010] ECHR 2039     Date of Delivery: 16/10/2010   

Here an asthmatic applicant complained about the unsanitary conditions in Russian prisons and also raised health issues relating to passive smoking.  The visiting room made it impossible to study legal documents with lawyer and could not consult with lawyer out of hearing of the prison warder. As a remand prisoner he was confined in an overcrowded with some convicted criminals.  Overcrowding meant that he could only sleep two hours a day, had to stand the rest of the time and was obliged to share a bed with a man who suffered from psoriasis. When the deputy chief administrator heard that the prisoner complained to ECtHR about the conditions of his detention, he threatened him with disciplinary measures, including isolation. The ECtHR ordered €10,500 damages to be paid.

Xiros v Greece 09 September 2010 (not final)

The applicant injured himself when a bomb exploded in his hands while he was preparing an attack.  As a consequence, his sight, hearing and movement were impaired. He applied for a stay of execution of his sentence in 2006 so he could undergo a recommended eye operation. The domestic court refused his request. It was held that the prison had not met the applicant’s medical needs and that his rights had, therefore, been violated under Article 3. According to a report by the CPT, the medical care he received fell short of that which he would have received in a hospital in the community.

Florea v Romania 14/09/2010 (not final)

The applicant who suffered from chronic hepatitis and arterial hypertension had to share an overcrowded 35 bed cell with between 110-120 other prisoners for 9 months. 90% of the other prisoners were smokers. The applicant claimed that he was continuously exposed to second hand smoke, both in his cell and in the infirmary when seeking medical attention. The Court noted that he had been confined to his cell for 23 hours a day in very unhygienic conditions, with the same room being used for sleeping and eating. Regarding passive smoking, the Court observed that no consensus existed among the member States of the Council of Europe with regard to protection against passive smoking in prisons.  However, observing that imprisonment in some cases called for enhanced protection of vulnerable individuals, the court found that the applicant’s rights were violated under Article 3 and that the prison had failed to address his medical needs. He was awarded 10,000 EURO in damages. 

Onoufriou v Cyprus - 24407/04 [2010] ECHR 23        Date of Delivery: 7/1/2010 

The applicant was serving a sentence for murder in Cyprus. He was granted temporary release in 2003 and after he failed to return to prison, he was arrested and held in solitary confinement for 47 days. He claimed that his ECHR rights under Article 3, 8 and 13 were violated. The applicant complained that he was held in a small, damp cell with no suitable clothes and no food.  He suffered with pain in his arm, but was refused treatment from the prison officers. He was not allowed out to shower or use the toilet, having to use a plastic bottle and a bag instead. He was not given food or water. He also claimed that he was denied family visits during solitary confinement and while he was on court visits. Evidence from the log books showed that there were discrepancies between the evidence from the prison service and the events recorded in the log book. The applicant also claimed that he sent a letter of complaint to the Ombudsman, which had been interrupted by the prison governor and read and passed on to the minister for justice. The Ombudsman maintained that communication from the applicant to her had been severely restricted and that this had impeded his ability to enact his rights. The Ombudsman also stressed the need for prisoners to be able to contact her in confidence, without restrictions. The ECHR upheld the applicant’s claim that Articles 3, 8 and 13 had been breached.

U.S. Case Law

Coleman and Plata et al., v Schwarzenegger, Governor of the State of California, et al. (2:90-CV-0520 LKK JFM)                                                                                        Date of Delivery: 04/08/10

In a landmark opinion on prison overcrowding in California, the three-judge district court imposed a population cap on the state's prisons (on 12 January 2010) in order to remedy the constitutional violations persisting in relation to the provision of medical and mental health care.  As regards mental health provision, the defendants had been consistently denied “a minimally adequate prison mental healthcare delivery system,” including proper screening; timely access to appropriate levels of care; an adequate medical record system; proper administration of psychotropic medication; competent staff in sufficient numbers; and a basic suicide prevention program.

Overcrowding was deemed to be the primary cause of the constitutional infringement of the Eighth Amendment (the cruel and unusual punishments clause).  Judges Reinhardt, Karlton, and Henderson stated at p. 107 that: “we are convinced that neither prison expansion, nor re-entry or medical facilities construction, nor any other construction effort offers a meaningful and timely remedy for the constitutional deficiencies in the delivery of prison medical and mental health care caused by crowding.” Hiring additional health and custodial personnel was also dismissed as a means of tacking the healthcare deficits. 

The court set a population limit of 137.5% of prison design capacity, ordering the state to submit a plan to reduce the current prison population from its present level of more than 190% of design capacity.  The court did not, however, make an order for the immediate release of prisoners, rather it sanctioned a gradual reduction in prison population of over 40,000 to be accomplished over a two-year period by the early release of non-dangerous prisoners and the diversion or community supervision of other individuals, such as technical parole violators who are currently returned to prison for short periods. The court was of the view that the state of California could ensure that the prison population reduction order would result in better public safety by putting adequate safeguards in place and improving rehabilitation and re-entry programs.

California appealed to the U.S. Supreme Court. The appeal was heard on 30 November 2010.  The decision is still pending.

[1]  Under Article 40.3.1 of the Constitution the plaintiff claimed the infringement of his personal right to bodily integrity, the right not to have his health placed at risk, and his right not to be subjected to torture, inhuman or degrading treatment or punishment.

[2] Irish Penal Reform Trust IPRT Briefing on Sanitation and Slopping Out in the Irish Prison System, available at (last accessed 04/01/11).

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