The Treatment of Persons Deprived of Their Liberty in Ireland

The Treatment of Persons Deprived of Their Liberty in Ireland

Observations of the Irish Human Rights Commission on the Third Report of the European Committee for the Prevention of Torture on their Visit to Ireland in February 2002

October 2004

One of the most fundamental human rights is the right to freedom from torture and inhuman and degrading treatment, a right which is set out in a number of international treaties to which Ireland is a party, including the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights and Fundamental Freedoms (ECHR). Article 3 of the ECHR states,

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

In its Strategic Plan, “Promoting and Protecting Human Rights in Ireland: A Plan for 2003-2006”, the IHRC prioritises the protection of the rights of persons deprived of their liberty and states that it:

“…will take an active part in the debate on conditions in our prisons and the rules by which they should be governed and will urge the establishment of an independent mechanism for dealing with complaints within the prison system….”[1]

The scope of States’ obligations under Article 3 of the ECHR has been developed over the years by the European Court of Human Rights and covers a wide range of issues, extending to placing obligations onStates to ensure that persons are not exposed to inhuman and degrading treatment in another State when deported or extradited. The IHRC has previously expressed concern in relation to the substantial changes to Ireland’s extradition laws contained in the European Arrest Warrants Act 2003, which implemented the EU Framework Decision on European arrest warrants and procedures amongst member States of the European Union.[2] In practice,however, the primary focus of the European Court of Human Rights in protecting persons from torture and inhuman or degrading treatment has been on the rights of detained persons.

In recognition of the particular vulnerability of detained persons to torture and inhuman or degrading treatment, in November 1987 the Council of Europe agreed the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.[3] The Preamble to that Convention states that the member States of the Council of Europe:

“Convinced that the protection of persons deprived of their liberty against torture and inhuman or degrading treatment or punishment could be strengthened by non-judicial means of a preventative character based on visits,

Have agreed as follows:

Article 1

There shall be established a European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Committee shall, by means of visits, examine the treatment of persons deprived of liberty with a view to strengthening, if necessary the protection of such persons from torture and from inhuman or degrading treatment or punishment.”

The CPT, therefore, acts as an auxiliary mechanism to the Court in the protection of detained persons’ rights. It operates by means of periodic visits to places of detention (e.g. prisons and juvenile detention centres, police stations and psychiatric hospitals) in each memberState. The CPT generally visits each memberStateat four-yearly intervals, but also makes exceptional visits if required in special circumstances.

Ireland ratified the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in 1988, and the CPT has visited places of detention in Ireland on three separate occasions in 1993, 1998 and 2002. On each occasion the CPT has written a report of its visit to Ireland highlighting issues of concern in relation to the treatment of persons deprived of their liberty and making recommendations for reform of law, policy and practice. Upon publishing the CPT reports the Government also publishes a response outlining the legislative and policy measures that are in place or that are being developed to respond to the concerns of the CPT. Although the deliberations, reports and recommendations of the CPT are confidential in nature, the general practice among member States is to publish the CPT’s findings within 6 months of receiving them.

In this report the IHRC examines in detail the problems highlighted by the CPT in its third report to the Government of Ireland following its visit to Ireland from 20th to 28th May 2002.[4] The Commission then assesses the official response of the Irish Government to the CPT’s report and recommendations,[5] highlighting the critical areas of law and policy where the human rights of detained persons are not being adequately protected. This examination is carried out with reference to the rights and freedoms guaranteed to persons under Article 3 of the ECHR, the other relevant international human rights treaties that Ireland has ratified and the CPT Standards, a publication issued annually by the CPT which sets out the standards and benchmarks which the Committee has developed in the various categories of detention that fall within its remit.[6]

In Section 2of these Observationsthe main requirements of international human rights law which Ireland is required to comply with in its treatment of persons deprived of their liberty are outlined. Thereafter separate sectionsare devoted to the examination of six key areas as follows: Section 3 Policing; Section 4 Prisons; Section 5Detention of Non-nationals; Section 6 Mental Health Establishments; Section 7 Establishments for Persons with Intellectual Disabilities; and Section 8 Detention of Children. Each of these areasis addressed by the CPT in its Report on its 2002 visit to Ireland in. Finally, the Commission’s recommendations are summarised in Section 9. The Commission hopes that these Observations will help focus much needed attention on the continuing inadequate protection of the human rights of persons detained in Ireland.[7]

2.Ireland’s International Human Rights Obligationsin Relation to the Treatment of Persons Deprived of their Liberty

Ireland has ratified a number of international human rights treaties that contain specific legal standards in relation to the protection and treatment of persons deprived of their liberty. The ECHR, which has been given legal effect in Irish law through the European Convention on Human Rights Act 2003, has a highly developed jurisprudence in relationto the treatment of persons deprived of their liberty. Ireland is also party to CAT and to the ICCPR.

International human rights law draws an important distinction between ill-treatment that amounts to torture, and other ill-treatment that is classified as being inhuman or degrading. Torture is defined as any act that causes severe pain or suffering, whether physical or mental, and that is intentionally inflicted on a person for the purposes of interrogation, punishment or intimidation. Inhuman treatment is defined as treatment that falls short of torture but nevertheless causes intense physical or psychological harm to a person. Degrading treatment is defined as treatment that arouses in the victim feelings of fear, anguish and inferiority capable of humiliating and debasing them.

The thresholds of seriousness required to prove torture, inhuman or degrading treatment or punishment are not static, but receive a living interpretation in light of ongoing developments in social and political attitudes within the Council of Europe member States. The Court and the CPT have taken a progressive approach in defining the various forms of ill-treatment, and as a result States cannot afford to be complacent in complying with their obligations to prohibit and prevent ill-treatment in all its forms.

2.2Effective Official Investigation of Complaints

One important aspect of the positive obligation upon States to prevent torture is the requirement that an effective official investigation of alleged incidents of torture, inhuman or degrading treatment or punishment should be carried out.[8] In accordance with Article 3 and Article 13 of the ECHR, an effective official and timely investigation should be carried out where an individual raises an arguable claim, and the investigation should be capable of leading to the identification and punishment of those involved.[9] Where an allegation of ill-treatment is supported by appropriate evidence, the burden of proof falls on the Government to produce evidence contradicting an allegation of ill-treatment.[10]

2.3Safeguards against Torture, Inhuman and Degrading Treatment or Punishment

In accordance with its positive obligation to actively prevent ill-treatment, international human rights law requires States to train and educate law enforcement personnel and other staff working in institutions where persons are detained in respect of the prohibition against torture.[11] States are also required to include this prohibition in the rules or instructions governing the duties and functions of law enforcement personnel. Furthermore, States are required to actively keep under systematic review interrogation rules, instructions, methods and practices in order to prevent cases of torture, cruel, inhuman or degrading treatment. In particular, the arrangements for the custody and treatment of persons subjected to arrest, detention or imprisonment should be constantly reviewed to prevent ill-treatment.[12]

2.4Conditions of Detention

The Court has held that certain conditions of detention amount to degrading treatment where those conditions diminish the person’s human dignity. It is important to note in this context that the ECHR is a living instrument that is interpreted in light of developments in social and political attitudes and developments within the Council of Europe member States.

In the case of Peers v. Greece the Court found a violation of Article 3 where the Greek authorities failed to take steps to improve the degrading conditions of the applicant’s detention. The conditions of detention in that case had been criticised by the CPT and by a delegation sent by the Court.[13] Article 3 has also been invoked in Scotland at the domestic level in relation to conditions of detention there. In the case of Robert Napier (AP) v. The Scottish Ministers[14],the Outer House of the Scottish Court of Session held that the petitioner was exposed to conditions of detention whichamounted to degrading treatment. In particular, the Court highlighted the negative effect on the prisoner of being forced to use a chamber pot in the cell which he shared with another person and the subsequent slopping out process. In addition, the Court pointed to the overcrowded conditions and the lack of structured activity other than daily walking exercise for one hour a day.

2.5The Right to Private Life for Persons Deprived of their Liberty

Article 8 of the ECHR guarantees the right to respect for private and family life, home and correspondence. An interference with this right is only acceptable where it is in accordance with the law, necessary in a democratic society and where it pursues a legitimate aim. The aim of the interference must be to protect the interests of national security, public safety or the economic well-being of the country; to prevent disorder or crime; to protect health or morals, or to protect the rights and freedoms of others.

law authorising the relevant interference with detainees’ rights to be drafted with precision i

2.6Treatment of Persons with Psychiatric Illnesses in Prisons

Article 5(1)(e) of the ECHR provides that a person can be lawfully detained if they are of unsound mind. In the case of Aerts v. Belgium, the Court has held that Article 5(1) of the ECHR requires that, “in principle the ‘detention’ of a person as a mental health patient will only be ‘lawful’ for the purposes of sub-paragraph (e) of paragraph 1 if effected in a hospital, clinic or other appropriate institution”.[15] In that case, the Court also stated that there must be some relationship between the ground of permitted deprivation of liberty relied on (i.e. psychiatric illness) and the place and conditions of detention.

Article 5(4) of the ECHR provides that everyone who is deprived of his or her liberty by arrest or detention is entitled to take proceedings by which the lawfulness of his or her detention can be decided speedily by a court. The “court” to which the detained person should have access to must be fully independent; it must have the power to order release if it finds that the detention is unlawful; it must carry out its review of detention soon after the person has been detained, and the review should be conducted with due diligence.[16]

2.7Treatment of Minors who are Deprived of their Liberty

Article 5(1)(d) of the ECHR allows for the detention of a minor for the purpose of educational supervision or for the purpose of bringing the minor before the competent legal authority. Article 37(c) of the Convention on the Rights of the Child provides that every child deprived of their liberty should be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of their liberty shall be separated from adults and shall have the right to maintain contact with his or her family through correspondence and visits.

The Court has held that while a child can be held briefly in a prison regime, this must be speedily followed by the application of a regime designed and with sufficient resources for the purposes of educational supervision.[17] In the case of D.G. v. Ireland[18] the Court did not viewas acceptable the detention of a juvenile in St. Patrick’s penal institution under an interim custody order preliminary to a regime of supervised education. The State had argued in that case that the juvenile in question was detained in St. Patrick’s because there was no secure educational facility in Ireland at that time to provide educational supervision.

3.Policing

3.1.1CPT Report on Ireland

The CPT reported that a not inconsiderable number of persons they spoke to claimed they have been physically ill-treated by police officers. The allegations received concerned incidents at the time of arrest, including after the detained person had been brought under control, and the period of transport to a police station, as well as allegations relating to ill-treatment in cells or detention areas.[19] The CPT observed that the number and consistency of the allegations of ill-treatment heard by the delegation lent them credibility and the CPT’s doctors gathered medical evidence consistent with the allegations received.

The CPT made particular reference to alleged incidents at Anglesea St. Garda Station, Cork and Store St. Garda Station, Dublin.[20] The CPT also requested information in relation to the criminal and disciplinary proceedings that resulted from the policing of a peaceful demonstration in May 2002 in which excessive force was used by a number of gardaí against protestors some of whom claim to have been repeatedly struck with batons after they had been brought under control.[21] The CPT recommended that the message that ill-treatment of detained persons is not acceptable – and will be severely sanctioned – be vigorously recalled to police officers in an appropriate manner at regular intervals.[22]

The CPT noted that formal arrangements were not yet in place for the choice/appointment of legal aid solicitors for detained persons who do not have their own lawyer. The CPT recommended that further steps should be taken to ensure that detained persons who do not have their own solicitor feel that they can trust the solicitor proposed to them.[23] The CPT is of the opinion that the right of access to a lawyer should include the right to have the lawyer present during police interrogation.

3.1.2Government Response and Analysis

In its response the Government pointed out that the Treatment of Persons in Custody in Garda Stations Regulations 1987, made under the Criminal Justice Act 1984, and the Garda Síochána Code require the Garda Síochána to maintain the highest professional standards and uphold the rights of detained persons.[24] While the regulations in place and the Garda Code require the members of the Garda Síochána to maintain the highest professional standards, the number of complaints of misconduct made against the Garda Síochána remains high. As the CPT observed, a not inconsiderable number of persons they spoke to claimed to have been ill-treated by the Garda Síochána. The Garda Complaints Board received 1405 complaints in the year 2002 which is the highest number of complaints the Garda Complaints Board has received to date.[25]

3.1.3Recommendations

1. The IHRC recommends that the Criminal Justice Act 1984 (Electronic Recording of Interviews) Regulations 1997 should be amended to require the members of the Garda Síochána to video-record all interviews carried out with suspects in custodyand that only exceptional extenuating circumstances should justify non-compliance with this requirement. This recommendation is also of relevance to the proposals underclause 18 of the Criminal Justice Bill 2004 in relation to the video-recording of witness statements.

1. The IHRC recommends that video-recording facilities should be set up in the reception area and cells of Garda stations, as well as in Garda vehicles used to transport suspects to the Garda stations.

1. The IHRC recommends that a code of conduct in relation to the questioning of suspects while in custody should be developed in line with the CPT Standards and compliance with this code should be monitored and enforced.

1. The IHRC recommends that a detained person should have the right to have her/his legal representative present during questioning by the police to ensure that the right to silence and the right not to incriminate oneself can be more effectively upheld during the pre-trial process.

1. The IHRC recommends that doctors should be explicitly required, by legislation and by their contracts of employment with An Garda Síochána, to record the results of all medical examinations of persons in detention. In particular, any relevant statements made by the suspect during the examination as to how they sustained any injuries and the doctor’s own conclusions in relation to the cause of the injury should be formally recorded. A copy of the doctor’s record of the examination should be made available to the detainee and his/her lawyer.

3.2 Independent Complaints Mechanism

The CPT state that the inspection of police establishments by a fully independent authority can make an important contribution towards the prevention of ill-treatment of persons held by the police and, more generally, help to ensure satisfactory conditions of detention. To be fully effective, visits by such an authority should be both regular and unannounced, and the authority concerned should be empowered to interview detained persons in private. Furthermore, the authority should be empowered to examine all issues relating to the treatment of persons in custody including the record of detention; the information provided to detained persons on their rights and the actual exercise of those rights; compliance with rules governing the questioning of criminal suspects; and the material conditions of detention.[26]