Irish Penal Reform Trust

IPRT Prison Law Bulletin: No. 2 – Summer 2011

18th July 2011

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.

We are also working with the Voluntary Assistance Scheme of the Bar Council – see; and the Public Interest Law Alliance to explore further how both professions can become more involved in public interest prison work – see 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 

This is the second prison law bulletin. The first bulletin was launched at Easter.  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.

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! 


Among the highlights of this bulletin are the recent significant High Court decision in Kinsella; a new Scottish case Green and Ors on slopping-out; the ground-breaking US Supreme Court decision on overcrowding in Brown v Plata; and a large number of ECtHR decisions.

Outline of Contents

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

Irish Case-law

Kinsella v Governor of Mountjoy Prison [2011] IEHC 235   Date of Delivery: 12/06/2011

A prisoner in Mountjoy successfully argued in the High Court that his 11-day detention in a padded cell (more correctly referred to as a “safety observation cell”, designed for at-risk prisoners with mental health problems) breached his constitutional rights.  The applicant who was convicted for theft and sentenced to 5 months, was also on remand for murder.  After his conviction at the start of June, he was moved from Cloverhill prison to Mountjoy and put on protection there, owing to perceived threats to his life and safety. Due to overcrowding and the lack of single cell accommodation, he was accommodated in a padded cell, where he was only released for 6 minutes a day to make a single phone call.  The sanitary facilities in the cell consisted of a cardboard box.  The prisoner sought a declaration that his constitutional rights had been infringed by the conditions of his detention, arguing that he should be immediately released under Article 40.4.2 (habeas corpus provision) of the Constitution.

Justice Hogan stated that “detention in a padded cell of this kind involves a form of sensory deprivation, in that the prisoner is denied the opportunity of any meaningful interaction with his human faculties of sight, sound and speech – an interaction that is vital if the integrity of the human personality is to be maintained.”  Turning to the application for release under Article 40.4.2, the judge concluded that the detention of the applicant in a padded cell for 11 days breached the State’s obligation to protect his person under the Constitution, but nonetheless held that the breach was not currently so serious that it immediately made the applicant’s detention unlawful.  Refusing the application for release, the judge granted the prison authorities “one more” opportunity to remedy the situation.  He did, however, make it clear that if the conditions of detention continued, the case “would inch its way to the point where the court could stay its hand no longer”.

MJELR v Wlodarcyzk [2011] IEHC 209                      Date of Delivery: 19/05/2011

A Polish national, who was the subject of two European Arrest Warrants, unsuccessfully challenged his extradition in the High Court, before Edwards J.  The warrants related to the theft of a lawnmower and threats to assault or burn down a woman’s house, in order to influence her to withdraw her complaint about the theft of money by the respondent.  The respondent denied that he had fled Poland in breach of the conditions of his probation order to escape justice, stating that he had informed his probation officer of his plan to seek employment in Ireland and she made a note of this.  He also claimed that he was concerned that his fundamental rights would be violated if he were surrendered to Poland and imprisoned there, due to problems with overcrowding, unsanitary conditions and poor medical services.  According to the Polish probation service, the respondent had been repeatedly informed that he was obliged to notify the officer of any change to his address, regardless of whether it was in Poland or abroad.  Moreover, under Polish Penal law a sentenced person’s departure without giving his/her probation officer a new address is considered to be the evasion of supervision.  The respondent had also failed to fulfill his obligation to pay PLN 300 to charity within 6 months.  This, in conjunction with his departure to Ireland, caused the execution of the penalty of deprivation of liberty to be ordered.

The High Court rejected the respondent’s assertion that there were deficits regarding correspondence between the Polish offences and their Irish equivalents.  Edwards J also held that there was strong evidence that the respondent’s true motivation was to evade justice, rather than to gain employment in Ireland.  Regarding Polish prison conditions, the judge referred to the earlier case of Minister for Justice, Equality and Law Reform v Rettinger [2010] IESC 45 and the steps a court must go through in deciding whether to surrender a person to the requesting State. 

In relation to concerns about being subjected to inhuman and degrading treatment in Polish prisons, the respondent had no personal experience of Polish prisons and relied mainly on anecdotal evidence to suggest that overcrowding was an ongoing problem.  Edwards J dismissed US State Department 2008 Human Rights Report for Poland as being “ostensibly out of date”.  The Polish prison population was deemed to be 117% in 2008, whereas in December 2010 records show a reduction to 97.3% capacity.  The latest figure from 13th of May 2011 showed an occupancy rate of 98.7%, with 4 out of 5 prisons in Klodzko (where the applicant was from) ranging between 90.2% and 102.2% (the one exception being the open centre which was operating at 129.1% occupancy).

Regarding the respondent’s claim about inadequate medical services in Polish prisons, the court took the view that there was no evidence to suggest that he would not be treated for his depression and asthma, as these were “quite common medical conditions.”  Edwards J accordingly ordered the respondent’s surrender to Poland on foot of the two European Arrest Warrants.

MJELR v Zych [2011] IEHC 161                                  Date of Delivery: 13/04/2011

A Polish national unsuccessfully challenged his extradition to his country of origin where he was recalled to serve outstanding prison sentences for violating the terms of his probation.  He claimed that the extradition warrants were defective due to form (vagueness, lack of precision regarding dates and times of offences etc.) correspondence (between the Polish offences - domestic violence and burglary - and equivalent Irish offences) and minimum gravity.  He also claimed that he had not “fled” Poland in contravention of this probation order, but that the probation service knew that he had re-located to Ireland and had not objected to his taking up residence abroad, nor did the probation officer request a Irish address.  He further alleged that his extradition to Poland would contravene section 37 of the European Arrest Warrant Act 2003 on the grounds that it with be incompatible with the State’s obligations to the respondent under the ECHR, particularly regarding the respondents right not to be subjected to inhuman and degrading treatment under Article 3 (submitting downloaded material from the internet about prison overcrowding in Poland) and his respect for private and family life under Article 8.

Edwards J in the High Court found against the respondent on all counts and accordingly directed his surrender to Poland pursuant to section 16 of the 2003 Act.

Gan v Governor of Arbour Hill Prison [2011] IEHC 247      Date of Delivery: 07/04/2011

A prisoner at Arbour Hill applied for an inquiry under Article 40 of the Constitution regarding the legality of his detention, claiming that (1) he is not the person who is identified in the prosecution documents used at his trial; (2) the warrants for his extradition were invalid; (3) his right to a fair hearing in the Court of Criminal Appeal has been impaired because of interference with legal correspondence, threats against him and witnesses and the same applies to previous court hearings; (4) that he has been supplied with food in prison to which he is allergic and which places his life in jeopardy; and (5) that a named person has interfered with him in an attempt to force him to withdraw his applications and pervert justice and he asks for her arrest.

Ryan J in the High Court dismissed grounds (1) and (2) and said that ground (3) should be brought to the attention of the Court of Criminal Appeal.  Regarding ground (4) which deals with food, namely the applicant’s entitlement to a Kosher diet and his allergy to onions, the judge stated that while he thought a prisoner “is entitled to have his special dietary needs and requirements catered for in a reasonable and proper manner”, he was not in a position to decide whether the applicant is entitled to demand Kosher food, owing to the lack of evidence.  Access to a kosher diet is “a matter of internal prison administration and the applicant is entitled to apply to the Governor with a complaint or request and his reasonable requirements and he can also seek the assistance of the visiting committee.” There applicant gave no evidence as to any steps he has taken in this regard. In relation to the applicant’s allergy to onions, he did not make any statement as to the presence of onions in his meals was “deliberate or accidental” and Ryan J refused to accept  “that the erroneous supply of onions on isolated occasions thereby renders a prisoner’s custody unlawful and entitles him to an inquiry under Article 40.” 

European Court of Human Rights

Hellig v Germany - 20999/05                                                            Date of Delivery: 07/07/11

The applicant was placed in security cell when he refused to move from a single occupancy to a multiple occupancy cell. He had been ordered to move cells and initially agreed but later refused to enter the new cell in spite of threats of violence from staff. There was an altercation between him and the staff who hit and kicked the applicant.  He was reported by staff as having been aggressive, and having kicked staff. He was then placed in the security cell where he remained for seven days. He was strip searched and spent time naked. It was unclear from submissions whether this was for the entirety of his detention but the general practice at the time would suggest that it was for his entire detention in the cell.

The applicant claimed that there had been a violation of Article 3 of the Convention arising from his alleged ill-treatment by prison staff when he refused to enter the multiple occupancy cell. He claimed that there had been a further violation of Article 3 in his alleged unlawful detention in the security without clothes or adequate facilities for personal hygiene. The Court held that the altercation between the applicant and the prison officers in which he was beaten did not amount to a violation of Article 3 as a certain level of violence is permitted. However, it held that there had been a violation of Article 3 in respect of the applicant’s detention in harsh conditions, in particular without clothing, in the security cell for seven days. The Court rejected the Government’s claims that that this was to prevent the applicant causing injury to himself and noted that he had not been provided with tear-proof clothing as recommended by the European Committee for the Prevention of Torture in such cases.

Stummer v Austria - 37452/02                                             Date of Delivery: 07/07/11

The applicant was born in 1938 and lives in Vienna. He has spent about twenty-eight years of his life in prison. During his prison terms he worked for lengthy periods in the prison kitchen or the prison bakery. As a working prisoner the applicant was not affiliated to the old-age pension system under the General Social Security Act. However, from 1 January 1994 he was affiliated to the unemployment insurance scheme in respect of periods worked in prison.

In February 1999 the applicant filed an application for an early retirement pension with the Workers’ Pension Insurance Office (Pensionsversicherungsanstalt der Arbeiter – “the Pension Office”).  In March of the same year the Pension Office dismissed the application on the ground that the applicant had failed to accumulate 240 insurance months, the required minimum for an early retirement pension. The applicant had accumulated only 117 insurance months.   Subsequently, the applicant brought an action against the Pension Office before the Vienna Labour and Social Court, the Vienna Court of Appeal and the Supreme Court claiming that he had been working for twenty-eight years in prison and that the number of months worked during that time should be counted as insurance months for the purpose of assessing his pension rights.  The applicant argued that the wording of section 4(2) of the General Social Security Act did not distinguish between work on the basis of a legal obligation and work based on a contract. Moreover, he argued that the distinction was not objectively justified.  Since 1993, prisoners who worked had been affiliated to the unemployment insurance scheme. In the applicant’s view there was no reason not to affiliate them to the old-age pension system.

Before the ECtHR, the applicant based his claim on Articles 4 (the prohibition against slavery and servitude including forced labour) and 14 (prohibition of discrimination) of the ECHR.  The ECtHR held by ten votes to seven, that there has been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1.  The claim under article 4 was rejected by 16 votes to 1 (Judge Tulkens dissenting), whereby the majority held that the applicant’s labour in the Austrian prison system did not amount to “forced or compulsory labour”, stating “According to the information available to the Court, while an absolute majority of Contracting States affiliate prisoners in some way to the national social security system or provide them with some specific insurance scheme, only a small majority affiliate working prisoners to the old-age pension system.” (paragraph 131)   The Court proceeded to state that “it appears that there is no sufficient consensus on the issue of the affiliation of working prisoners to the old-age pension system. While Rule 26.17 of the 2006 Rules reflects an evolving trend, it cannot be translated into an obligation under Article 4 of the Convention." (paragraph 132)

In relation to Article 4 of the ECHR, the dissenting opinion noted that there is very little ECtHR case-law concerning prison work.  Judge Tulkens referred to Rule 26.10 of the 2006 European Prison Rules emphasises the need for equitable remuneration for prisoners, as well as a decision of the German Federal Constitutional Court from 1998 which held that since the State had a constitutional duty to promote prisoners’ social rehabilitation and had chosen compulsory prison work as one of the means of achieving that aim, it had to ensure appropriate remuneration for such work, which could not yield the expected results unless it was properly rewarded..  While the Constitutional Court did not stipulate what would amount to an appropriate reward, it held that it was unconstitutional to pay prisoners low wages that bore no relation to the value of the work performed or to the minimum wage in the outside world. The guiding principle is that of human dignity.  Judge Tulkens disagreed with the majority that “in 2011, in the light of current standards in the field of social security, that prison work without affiliation to the old-age pension system” could correctly be deemed to be work that a person in detention may normally be required to do.

Saçilik and others v Turkey - 43044/05 and 45001/05       Date of Delivery: 05/07/11

This case arose in the wake of an incident in Burdur Prison which stemmed from the applicants’ refusal to attend a Court hearing after they claimed they had been beaten by gendarme soldiers while travelling from the Court on a previous occasion. When the applicants refused to attend the Court hearing soldiers were called to the prison and a major altercation ensued. It resulted in the applicants being cornered in a section of the prison. Walls were torn down by a digger which severed the arm of one of the applicants.  Tear gas and other gases were used by the soldiers who also beat the applicants, resulting in injuries, some of which were life-threatening. The Government argued that the applicants had been rioting and that the intervention of the soldiers was necessary. This was rejected by the Court on the basis that there was no evidence to support this.

The Court held that there had been a violation of Article 3 as the applicants had been subjected to inhuman and degrading treatment in the incident at Bardur Prison. The Court also found that there had been a breach of the procedural element of Article 3 in the lack of effective remedy available to the applicants.

Orlov v. Russia - 29652/04                                                    Date of Delivery: 21/06/11

In this case the applicant claimed violations of Articles 4, 3, 13 and 6, inter alia, of the ECHR.  His claims related to a period in which he was in a temporary detention centre, in particular where he was detained in punishment cells. He claimed that in detention he was subjected to overcrowded conditions, had not been provided with a bed or bedding and that he had only received food twice a day, which was of very poor quality. He also claimed that the conditions in the punishment cells where he was detained on numerous occasions were very poor, in particular having very little personal space. The Court found that there had been a violation of Article 3 during the period from 2005-2006 in which the applicant was detained in the punishment cells, but not for the rest of the period he was in detention. It also found that there had been a breach of Article 13 in conjunction with Article 3 as there was a lack of effective remedy, and a breach of Article 6 §  1 and 3 (b) and (c) in respect of certain proceedings.

Hadžić and Suljić v Bosnia and Herzegovina - 39446/06 and 33849/08

Date of Delivery: 07/06/11

The applicants in this case suffered from mental health problems and were both serving sentences for manslaughter based on diminished responsibility. They claimed that their detention in the Forensic Psychiatric Annex at Zenica Prison was in breach of Article 5 as it was unsuitable for mental health patients. The Court noted that both the domestic Constitutional Court and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment had concluded that the Psychiatric Annex was not suitable for mental health patients. It held that there had been a breach of Article 5 § 1 of the ECHR in respect of both of the applicants arising from their unlawful detention in the Psychiatric Annex.

Csüllög v Hungary - 30042/08                                              Date of Delivery: 07/06/11

The applicant in this case was serving a sentence of five years for conspiracy to murder. He was detained at a strict regime prison and due to fears that he was planning escape was then placed under a high security regime. This regime consisted of complete isolation, with only one hour a day spent outside of his isolation cell. He was always handcuffed when outside his cell, even on medical visits and had difficulties in receiving visitors. In his cell there was only one artificial light, insufficient ventilation, no seat or cover on the toilet and he was subjected to daily cavity searches. The Court held that there had been a violation of Article 3 based on the degrading and inhuman nature of his detention, both in its physical nature and in its length. It also held that there had also been a violation of Article 13, read in conjunction with Article 3, of the Convention, in the limits placed on his attempts to challenge his detention domestically.

Khodorkovskiy v Russia  - 5829/04                          Date of Delivery: 31/05/11

The applicant in this case was a businessman and charged with fraudulent acquisition of shares, misappropriation of business proceeds and tax evasion. He claimed that the prison conditions in two remand centres where he was held and in the Courtroom before and during his trial amounted to a violation of his rights under Article 3 of the ECHR, which prohibits torture or inhuman or degrading treatment or punishment. In one of the detention centres he shared a cell with thirteen other people, in which he spent most of his time as there was no fitness centre or other facilities. The hygiene and sanitary conditions were also very poor. When in Court the applicant was confined to a cage, although he was accused of economic rather than violent crimes and had no previous convictions. The applicant also claimed that his continuous detention and further extensions of his detention were a breach of his right to liberty under Article 5. 

The Court found that Article 3 had been violated due to the conditions in one of the detention centres and also held that there had been several breaches of Article 5 in relation to his apprehension and detention.

Firat Can v Turkey - 6644/08                                                Date of Delivery: 24/05/11

The applicant here claimed that his rights under Articles 3, 5 and 6 of the ECHR had been breached, stemming from his ill-treatment during a transfer between prisons. He claimed that he had been beaten by gendarme soldiers in charge of his transfer and that some jewellery he was wearing had been taken under duress during the transfer. Upon arrival at the prison to which he was being transferred he asked for a medical examination and was found to have injuries arising from violence during the period where he was being transferred.

The Court found that there had been substantive and procedural breaches of Article 3 arising from his ill-treatment during the transfer and from the lack of independent and effective investigation. The Court also found that there had been breaches of Articles 5 and 6, in relation to the proceedings brought against the applicant and his pre-trial detention.

Popandopulo v Russia - 4512/09                                         Date of Delivery: 10/05/11

The applicant in this case made complaints under Articles 3 and 13 of the ECHR, inter alia. His claims stemmed from the abject prison conditions which he was subjected to, as well as his ill-treatment while in prison and the excessive length of proceedings against him. The court found that the conditions in one remand prison in St Petersburg, amounted a breach of Article 3 and that the lack of effective complaints procedure for the conditions amounted to a further breach under Article 13. The Court also found that there had been a breach of Article 3 arising from his ill-treatment and lack of effective investigation into an incident where he had been beaten by prison officers using a rubber truncheon.

Nechiporuk and Yonkalo v Ukraine - 42310/04      Date of Delivery: 21/04/11

In this case the applicant claimed that he had been tortured while in police custody in breach of Article 3 of the ECHR. He alleged that while in custody he had been subjected to electric shocks and that the authorities denied this had occurred and failed to provide an adequate explanation for the origin of his injuries. He further claimed that the Government had failed to provide an effective domestic investigation into his allegations of torture. The Court found that he had been subjected to torture in violation of Article 3, and that there had also been a breach of Article 3 in the lack of effective investigation into the allegations of torture by police.

The applicant also claimed that he had been detained unlawfully and arbitrarily, that he had not been given reasons for his arrest or seen a judge in promptly, and that there was no compensation scheme in effect for his unlawful detention, in breach of Article 5 §§ 1, 2, 3 and 5.  The Court found that over several periods in detention the applicant had been unlawfully detained in breach of Article 5. It also found that there had been violations of Article 5 in the failure to bring the applicant promptly before a judge, to hold a trial within a reasonable period among other breaches. The Court also found breaches of Article 6 § 1 (right to a fair and public hearing).

Jendrowiak v Germany - 30060/04                          Date of Delivery: 14/04/11

The German applicant, who had been convicted of multiple counts of rape and attempted rape, alleged that the retrospective extension of his first preventive detention beyond a period of ten years (the maximum for such detention under the legal provisions applicable at the time of his offence) had breached his right to liberty as guaranteed by Article 5 § 1 of the ECHR and the prohibition of retrospective punishment under Article 7 § 1.  Had it not been for the amendment of Article 67d of the Criminal Code in 1998, which was declared applicable also to preventive detention orders which had been made – as had the order against the applicant – prior to the entry into force of that amended provision, the applicant would have been released when ten years of preventive detention had expired, irrespective of whether he was still considered dangerous to the public.

The applicant’s preventive detention had been deemed necessary as he had a tendency to commit serious sexual offences against women and posed a high risk of reoffending.  Having served his full prison sentence, the applicant was placed in preventive detention for the first time in October 1992; serving ten years in preventive detention by October 2002.  The continuation of the applicant’s preventive detention was ordered by the Karlsruhe Regional Court at regular intervals due to the ongoing threat he posed. The applicant was released from preventive detention on 28 August 2009.

The ECtHR held that there was not a sufficient causal connection between the applicant’s conviction by the sentencing court and his continued deprivation of liberty beyond the period of ten years in preventive detention. His continuing detention was therefore not justified under sub-paragraph (a) of Article 5 § 1.  In particular, that detention was not justified as detention “reasonably considered necessary to prevent his committing an offence” under sub-paragraph (c) of that provision. The applicant’s potential further offences were not sufficiently concrete and specific, as required by the Court’s case-law, as regards, in particular, the place and time of their commission and their victims.  While the Convention obliges State authorities to take reasonable steps within the scope of their powers to prevent ill-treatment of which they had or ought to have had knowledge, it does not permit States to protect individuals from criminal acts of a person by measures which are in breach of that person’s Convention rights, in particular the right to liberty as guaranteed by Article 5 § 1.  The ECtHR also held that Article 7 § 1 (no punishment without law) had been violated.

Peker v Turkey (No. 2) - 42136/06                           Date of Delivery: 12/04/11 

On 19 December 2000 security operations were conducted in a number of prisons in Turkey, during which scores of detainees were killed and hundreds injured (for details of these operations, see İsmail Altun v. Turkey, no. 22932/02, 21 September 2010;Keser and Kömürcü v. Turkey, no. 5981/03, 23 June 2009; and Gülbahar and Others v. Turkey, no. 5264/03, 21 October 2008).

The operation in Gebze prison, where the applicant was serving a prison sentence, started in the early hours of the day. The applicant alleged, in particular, that he had been shot in the leg and then beaten up by a number of gendarmes who had been carrying out an operation in the prison where he was being detained. The applicant successfully argued that he had been subjected to violations of Articles 2, 3, 6 and 13 of the ECHR.  The Court ordered the Turkish State is to pay the applicant €18,000 in respect of non-pecuniary damage, and €3,500 for respect of costs and expenses, less the €850 granted by way of legal aid.

Nelissen v The Netherlands - 6051/07                     Date of Delivery: 05/04/11

The applicant here was suffered from paranoid schizophrenia and an obsessive compulsive personality disorder. He was convicted of theft preceded by violence and sentenced to seven month’s imprisonment with a deduction of time for pre-trial detention. As he was unable to understand the nature of the unlawfulness of his actions and was deemed to be at a high risk of re-offending a “TBS Order” was imposed with confinement to a custodial centre. This order was a legal basis for further detention of the applicant after his prison sentence on the basis of his mental health and risks potentially posed by his release. The Court further ordered the termination of the applicant’s pre-trial detention from the moment it equalled the prison sentence imposed. On a certain date the legal basis for his detention shifted from the pre-trial detention order to the TBS order, while waiting for a suitable place to become available at a custodial centre. As he had been in pre-placement detention the applicant was entitled to avail of an offer for financial compensation but his representatives disagreed with the calculation of the compensation and wrote to the Minister of Justice to this effect.

The basis of the applicant’s claim was that he the length of time that passed before he was transferred from remand prison to the custodial clinic was a violation of Article 5 § 1 of the Convention. He also made claims under Article 3 and 6 in relation to the length of time of his detention. The Court held that there had been a violation of Article 5 § 1 and the applicant was awarded €3,525 in compensation.

Vasyukov v Russia  - 2974/05                                   Date of Delivery: 05/04/11

The applicant here was serving a twelve year sentence for murder. He claimed a violation of Article 3 of the Convention on the basis that he had contracted tuberculosis during his detention and that the authorities had not taken sufficient measures to ensure his health and well-being, as they had delayed diagnosing him with tuberculosis and had then failed to provide him with adequate medical assistance. His claim was divided into two periods and the Court found that there had been a violation under Article 3 for the first period due to the authorities failure to diagnose the applicant with tuberculosis and failure to provide adequate medical assistance to the applicant.

Nikolay Fedorov v Russia - 10393/04           Date of Delivery: 05/04/11

The applicant in this case alleged ill treatment on the 20th of June 2003 while in prison in breach of Article 3 of the Convention. He claimed that was strangled, hit on the leg with a rubber truncheon, had his arms twisted backwards and his scrotum squeezed.    He also claimed and that the investigation into his complaint had not been effective. The applicant had been physically beaten by prison officers and the Government admitted that certain injuries had been sustained through the legitimate use of force and that others were self-inflicted.   The Court found that there had been breaches of Article 3 of the Convention due to the excessive use of force against the applicant and the fact that the investigation concerning the incident had not complied with the requirements of the provision.

UK Case-Law

NM, R (on the application of) v Secretary of State for Justice [2011] EWHC 1816

Date of Delivery: 12/07/11

“NM”, the claimant, a 24-year-old convicted sex offender and arsonist with a learning disability (an IQ of 60), was sexually assaulted in his cell by a fellow prisoner, “F” at HMP Whatton. He had also previously been sexually assaulted and raped by a cell-mate in another prison, which gave rise to an Ombudsman investigation into the incident and the official response. 

The claimant, supported by the Howard League of Penal Reform, alleged breaches of duty and an unreasonable failure to follow the relevant PSOs regarding investigations and prisoners with disabilities, in addition to breaches of Article 3 ECHR.  He claimed that the prison authorities failed to act on his request for police involvement until 17 days after the incident.  He also argued that given that the incident in question was serious, and contained a sexual aspect, a formal investigation under PSO 1300 should have taken place, particularly because he was disabled and had not received the assistance required by PSO 2855 (the disability protocol).  If he had had an “appropriate adult” appointed, then the process and outcome of the enquiry might have been different.  As it was, the penalty imposed on “F” for the sexual assault was 3 days cellular confinement, but suspended.

Dismissing the claim, Judge Mackie stated that while the claimant’s disability was overlooked, the decision to investigate the incident in the manner which the prison decided upon was a reasonable one, breached no PSO or other regulation and was “with within the range or reasonable options open to it.” (paragraph 56)  Regarding the alleged breach of Article 3, he stated further that observations “in decided cases about the need for and Article 3 investigation of more complex incidents involving serious injury, or larger numbers of potential victims, or allegations of direct infringement by the State cannot be applied without qualification to a single incident affecting one individual where there has been no bodily injury let alone life threatening harm.  ... The picture is a long way from a  conventional failure or refusal by the State to look into allegations of inhuman or degrading treatment by a vulnerable prisoner.” (para. 57)

In the Matter of Duncan Jackson (setting of minimum term)

And in the matter of an application under Criminal Justice Act 2003 Schedule 22 paragraph 3 [2011] EWHC 1628 (QB) 

Date of Delivery 06/07/2011

The applicant in this case was convicted of murder in January 2000 and sentenced to life imprisonment. In December 2001 the applicant was informed that the tariff of his sentence had been set at 15 years.  Under the Schedule 22 paragraph 3 of the Criminal Justice Act 2003 however the applicant has the right to apply to the High Court to set his minimum term which cannot be greater than that which has previously been notified to him; this application is the basis of this judgment. Three questions were then put to the parties by the judge:

i) What would the tariff for this offence have been at the time it was committed?

ii) Does Article 7 of the European Convention on Human Rights require that the minimum term which is now imposed should be no greater than the tariff would have been at the time that the offence was committed?

iii) Even if Article 7 does not impose that obligation, is the tariff which would have been imposed at the time the offence was committed a material circumstance which I (a) must or (b) may take into account?

The applicant argued that as the offence had been committed in 1985 he should receive a sentence reflecting the existing practice at the time. The trend at the time was for a life sentence to be no less than 12 years, however since then it has increased to 14 years. He also argued that he his progress since conviction should be taken into account in setting a minimum sentence. He relied on Article 7 (1) of the ECHR (“No one…shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed”) to support his substantive claim. 

Mr Justice Nichol rejected the applicant’s claim that Article 7 would be violated in this case simply because he fixed a longer minimum term than “would have been likely “if the applicant had been convicted and sentenced shortly after the offence was committed. “His rights under that provision would only be infringed if I fixed a term which was longer than the tariff which could have been set in 1985.” (paragraph 36) Since there was no statutory regulation of minimum terms in 1985, even if the judge were to assume in the applicant's favour, that the minimum term could not lawfully have been set outside a reasonable range of decisions, he would find that 15 years fell within that range.

In considering whether the applicant’s tariff should be reduced from 15 years due to “exceptional behaviour”, Justice Nichol held that the evidence adduced suggested that the applicant’s behaviour as a lifer had been good, but not exceptional.  Moreover, the risk assessments presented all stated that there is a medium risk of re-offending.  The judge, therefore, held that the tariff should not be reduced on account of applicant’s progress while in prison.

Conway, Re Application for Judicial Review [2011] NIQB 40 

Date of Delivery: 05/05/11

The applicant, a remand prisoner at HMP Maghaberry who had been refusing to comply with full body searches, unsuccessfully challenged the lawfulness of the policy of routine full body searching of prisoners on entering and leaving the prison.  His claims that this policy was ultra vires Rule 16 of the Prison and Young Offender Centre Rules (NI) 1995 and incompatible with Article 8 of the ECHR were also rejected, as was the further contention that forcible full body searching of prisoners who neither consent to nor resist such a search is unlawful and incompatible with Articles 3 and 8 ECHR.  Treacy J gave a comprehensive account of how all prisoners in Northern Ireland have been required to submit to a full body search on committal or discharge from prison.  Where prisoners co-operate there is no physical contact between prison staff and prisoners.  At no time is the prisoner completely naked, and the search is usually over in a few minutes.  However, where a prisoner refuses to co-operate, he/she will be subject to strict control and restraint techniques.

In discussing the recent review of the Northern Ireland Prison Service into the practice of full body searches, as well as relevant domestic and ECtHR case-law on the subject, the court held that the policy of full body searching upon entering and leaving prison was in line with the legislative objective of maintaining good order and discipline within the prison, the discharge of the duty of care owed to prisoners and staff and the protection of the public, by stemming the flow of contraband (such as drugs and weapons) into and out of the prison.  The uniform measure was not considered disproportionate.  Indeed, the judge was of the view that the “absence of a uniform practice could referred to the fact that the search practice in Northern Ireland is less intrusive to that applied in other UK prisons “where squatting and mirror searches” are permitted, or in the Irish Prison Service where “according to their training manuals, a search on first committal involves a prisoner being totally naked.” (paragraph 7 and 55)

Despite dismissing the applicant’s claims, Treacy J expressed significant reservations as to whether “a routine search on final discharge, can be regarded as lawful or proportionate.  On what basis, for example, can a prisoner who has been acquitted and in respect of whom there are no reasonable grounds for suspecting that he is unlawfully removing prison property be subject to full body searching/forcible body searching?” (paragraph 62)

Greens & Ors, Re Application for Judicial Review [2011] ScotCS CSOH-79

Date of Delivery 12/05/11

3 petitioners, who had all been incarcerated in single cells at Peterhead prison, Scotland’s main prison for sex offenders, applied for judicial review complaining that the conditions at Peterhead subjected to them to inhuman or degrading treatment and also unjustly interfered with their right to respect for their family lives, under Articles 3 and 8 of the ECHR.  The focus of their claim related to the fact that the cells they occupied had no integral sanitation, although they did have access to a chemical toilet known as a “porta potti”.  Further complaints related to the lack of hand washing facilities in the cells, the lack of ventilation and the practice of “bombing” whereby prisoners flung newspapers filled with excrement or jars containing urine out the window.  The petitioners maintained that the conditions of their incarceration resulted in feelings of frustration, worthlessness and degradation.

Interesting evidence was adduced by several experts on cell conditions, privacy and slopping out and the mental anguish and stress that dehumanising conditions can engender.  At paragraph 142, Professor David Canter, an expert in environmental psychology stated that most people “assign different places for different activities and although it is possible for rooms to combine one or more of these "places" this inherently causes conflict and associated stress. In particular, society has developed very strong and clear demarcations and taboos between toileting activities and social interaction and eating.”  Professor Canter nonetheless said that the chemical toilet was a an improvement on the previous chamber pot arrangement and that the "experience of being degraded or dehumanised by the conditions are thus not as great" although their use carried potential for causing stress and making prisoners feel less than human.

Distinguishing the regime at Peterhead (single cell occupancy, decent out-of-cell time with good opportunities for education and training etc) from that which existed in the Napier case, Lady Dorrian held that there had been no violation of Article 3 of the ECHR, based on the regime as a whole.  She did, however, hold that the ambit of Article 8 is wider than Article 3 and that the scope of "private life" includes “the regular activities of daily life, such as discharging bodily waste and maintaining a standard of cleanliness” (paragraph 278).   She, thus, held that Article 8 had been violated prior to the institution of the work party when individuals had to slop out the chemical toilet themselves, and queue to do so in the circumstances as described by the petitioners.

U.S. Case Law

Brown, Governor of California et al. v. Plata et al Date of Delivery: 23/05/11

In a recent landmark judgment concerning prisoners’ rights and constitutional law, the US Supreme Court upheld a decision which requires California to act to relieve the serious overcrowding in its prison system, which could require the release of 46,000 prisoners. At the time of the judgment, the occupancy levels of Californian prison system were running at 200% of its design capacity. In two long running cases, class actions had been taken by prisoners whose mental and physical health was being jeopardised by a lack of medical staff and, in particular, overcrowding, which placed enormous demands on the medical facilities in Californian prisons and on the living conditions of their inmates. Some prisoners with mental health problems were kept in cages the size of telephone boxes with no toilet facilities because there was simply no other place to keep them while awaiting transfer to scarce mental health treatment beds; 200 prisoners were staying in a gymnasium with only two or three correctional officers in charge; 54 prisoners were sharing a single toilet in one institution. The Supreme Court held, by a majority of 5: 4 that these conditions constituted cruel and unusual punishment and violated the Eighth Amendment to the US Constitution.

Relying on the evidence of experts, the Court noted that overcrowding had “overtaken the limited resources of prison staff; imposed demands well beyond the capacity of medical and mental health facilities; and created unsanitary and unsafe conditions that make progress in the provision of care difficult or impossible to achieve”. It found that overcrowding increased violence and unrest in the prisons, as well as a high rate of suicides and increased transmission of infectious diseases, with a damaging effect on prison staff as well as prisoners.

The Supreme Court recognised the huge significance of the order it affirmed in Plata, but it considered an injunction to reduce the prison population essential to remedy the constitutional violations. In an endorsement of the need for judicial protection of the rights of prisoners, the Court reasserted that “prisoners retain the essence of human dignity inherent in all persons” and that “a prison which deprives prisoners of basic sustenance, including adequate medical care is incompatible with the concept of human dignity and has no place in civilized society”.

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