Inspection and monitoring of prisons: what does European public law require?

The first presentation from the PRILA project (Prisons: the rule of law, accountability and rights, @prila_tcd), which is funded by the European Research Council (2015-StG-679362) was made at the ICON-S Conference in Copenhagen on July 6 2017. You can see the programme for the conference here (the PRILA abstract is on page 210).

The paper examined how European public law has dealt with inspection and monitoring of prisons at the domestic level. Its central argument is that the European Court of Human Rights has not given sufficient attention to domestic inspection and monitoring of prisons, resulting in a lack of guidance about the powers they should have. This neglect has also, inadvertently, resulted in inspection and monitoring mechanisms not receiving the endorsement and support they need from the Court. The key points of the paper are summarised here.

The paper begins by examining inspection and monitoring in European human rights law. It notes the European Prison Rules’ requirement that there be inspection of prisons. The purpose of such inspection is to ensure that prisons are run in accordance with domestic and international law and the European Prison Rules themselves. The paper notes, however, that there is more guidance in the 2015 United Nations Mandela Rules concerning the powers which inspectors should have than in the European Prison Rules. The paper further suggests that the introduction of the Optional Protocol to the United Nations’ Convention Against Torture indicates the importance of domestic inspection and monitoring bodies in the prevention of torture and other forms of cruel, inhuman and degrading treatment or punishment, and that OPCAT also exceeds the European Prison Rules concerning the level of guidance given to those bodies.

The paper then examines the European Court of Human Rights’ assessment of inspection and monitoring bodies. In examining the cases of  Rodić and others v. Bosnia Herzegovina (application no. 22893/05, May 27 2008), Neshkov and others v. Bulgaria, (application nos 36925/10, 21487/12, 73196/12, 77718/12, 9717/13, January 27 2015) Torreggiani v. Italy (application nos. 43517/09, 46882/09, 55400/09), Varga v. Hungary, (application nos, 14097/12, 43135/12, 73712/12, 34001/13,44055/13 and 64586/13, March 10 2015, and Ananyev v. Russia (application nos. 42525/07 and 60800/08), April 10 2012), the paper argues that the Court has focused on preventive remedies on Article 3 to the exclusion of an assessment of the role of inspection and monitoring mechanism. This is an understandable product of the Court’s emphasis in the caselaw on effective remedies on the ability of a body to bring about an enforceable and binding decision in an individual’s case. This is not how many inspectors operate. The focus of inspection in Ireland and in the United Kingdom (and also the focus of OPCAT) is on engaging state authorities in dialogue and prompting reform through the issuance of recommendations and follow up.

The paper argues that states in Europe need more guidance on the powers which inspectors should have. It suggests that this could be provided through a number of possible solutions:

  1. A lack of an effective inspection and monitoring procedure could be argued as a standalone breach of the Convention, likely Article 3;
  2. Inspection and monitoring bodies could be assessed as factors in decisions on whether Article 3 (or other Articles when applied in the prison setting) has or have been breached;
  3. A soft law instrument on domestic prison inspection and monitoring is needed from the Council of Europe.

Related papers will be presented at the Society of Legal Scholars’ Annual Conference in University College Dublin in September 2017 and at the European Society of Criminology Annual Conference in the same month. A comparative piece with US law will be presented at the American Society of Criminology Annual Conference in November 2017. All feedback is very welcome!

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Inspection and monitoring of prisons: what does European public law require?

New publication: Human rights and correctional health policy

The latest issue of the International Journal of Prisoner Health has just been published. Prof Brie Williams, Cyrus Ahalt, Prof Craig Haney, Dr. Scott Allen and Prof Josiah Rich are the editors of a special issue on the topic of ‘translating research into policy to advance correctional health’.

I have a piece in this special issue entitled ‘Human Rights and Correctional Health Policy: a View from Europe‘. In the piece, I examine how human rights principles can shape health policy in our prisons and jails for the benefit of the administration of correctional services.

Prisons and jails are eminently rule-bound institutions, and correctional law can be a key source of protection for those in prison, but also for prison staff and those who work in healthcare settings. In the piece, I argue that European human rights principles are distinctive, and that they offer the possibility of improving how healthcare is managed in prisons and jails. For example, the European Court of Human Rights has reiterated the importance for prisoners to be able to access medical care without undue delayA person’s incapacity may mean that release is necessary in order to comply with Article 3 of the European Convention on Human Rights.

The European Court of Human Rights has also turned its attention to the rehabilitative programmes for those whose prospects of release are linked to their ability to address their level of risk. In Murray v. the Netherlands the Court held that, while there was no right to rehabilitation as such in European prison law, prison authorities must provide prisoners with the opportunity to rehabilitate themselves in circumstances where eligibility for release depends on accessing such programmes.

While the focus on access to rehabilitation may be a distinctive European prison law norm (see van zyl Smit and Snacken), constitutional law principles from the United States can also guide the imposition of improved healthcare. In Brown v. Plata, the famous case arising out of severe overcrowding in California (and brought by the Prison Law Office), the Supreme Court of the United States held that prisoners retain the essence of human dignity inherent in all persons. Recognising this dignity is an idea unrestrained by national boundaries. It is also an idea physicians and human rights professionals try to live out every day.

The special issue also contains work by Jamie Bennett and Richard Shuker on the potential of prison-based democratic therapeutic communities, and by Jae Sevelius and Valerie Jenness on challenges and opportunities for gender-affirming healthcare for women in prison. There is a very timely piece by Cyrus Ahalt, Craig Haney and colleagues on reducing the use and impact of solitary confinement, as well as a research paper on the policy implication of ageing prison populations.

Please contact me for an open access (green) version of the paper, or see here.

New publication: Human rights and correctional health policy

21 years of the Irish Penal Reform Trust: civil society and law reform

The Irish Penal Reform Trust (IPRT), Ireland’s leading NGO working for progressive reform of the penal system, is celebrating twenty one years in existence.

I was privileged to chair IPRT between 2010 and 2014. Meeting current and former staff and board members at Áras an Uachtaráin, at a reception hosted by IPRT Patron, President Michael D. Higgins, and Sabina Higgins, brought home to me once again the importance of well resourced, professional civil society organisations. The use of evidence and the creation of constructive and concrete proposals for reform have also been hallmarks of the work of IPRT. It was also very evident that NGOs require a wide variety of strategies and tactics, and the support and input of a wide variety of actors. The photograph of those attending the event shows the diversity of interests and talents which have combined to make IPRT the authoritative organisation it has become.

The question of strategy and the role of NGOs was also very evident at the most recent seminar in the ‘Changing Ireland, Changing Law’ project, which I am co-directing with Professor Ivana Bacik of Trinity College Dublin. It is funded by the Irish Research Council, and will produce an edited collection with contributions from former litigants, lawyers, academics and NGOs, in 2016. This project works with the Public Interest Law Alliance as its lead partner. The project examines how litigation has acted to shape social policy in Ireland and models of change adopted by NGOs. It wishes to document and share the experiences of the individual litigants behind the cases which have shaped law reform in Ireland. Our first seminar was with the National Women’s Council of Ireland, and explored women’s rights and social change in Ireland. Our second was with the Gay and Lesbian Equality Network, and looked at the transformative effect of cases taken by Senator David Norris, and Senator Katherine Zappone and Dr. Ann Louise Gilligan. Our most recent seminar involved us partnering with the Immigrant Council of Ireland, to hear about the pressing need for reform in the area of immigration and asylum. The Mallak v Minister for Justice, Equality and Law Reform decision was a key point of discussion in this seminar. This case, which has fundamentally altered administrative law in Ireland, held that there is a right to reasons even when a decision is entirely within the discretion of a Minister, when fundamental rights are affected.

The Mallak case has a lot of potential in the area of prison law. The right to reasons has potential application across a wide variety of areas. It is central to a truly accountable prison system.

The Irish Penal Reform Trust has worked hard to reform the penal system in Ireland. Its work on accountability in particular remains urgent and critical to the development of better penal and social policy in Ireland.

21 years of the Irish Penal Reform Trust: civil society and law reform

Accountability in our prisons: Blog for Justicia +

I was delighted to be invited to write a blog for Justicia +, an organisation based in Mexico, on the globally relevant concept of accountability in our prisons. The English version is below, and the original (in Spanish) can be found here.

Accountability and the rule of law take on particular importance in the prison context. International human rights norms emphasise the need for independent monitoring, proper record keeping, and fair procedures in decisions which affect the fundamental rights of prisoners, such as family rights in the case of family visits and transfers, as well as procedural justice during disciplinary hearings. It is well established that fair procedures enhances the legitimacy of prisons, and the role of staff in these processes is essential. As the Association for the Prevention of Torture has said about the Optional Protocol to the United Nations Committee on the Convention against Torture has stated, the ‘basic premise is that the more open and transparent places of detention are, the lesser the risk for abuse’. The rule of law is upheld through clarity in prison regulations, the application of the rules equally, and with fair procedures, recourse to a process of appeals, and respect for rights. These principles are of fundamental importance in places where State power is at its most potent.

Prisons are places of power, which flows in a variety of crucial ways. State power is exercised by means of the imposition of punishment; power flows through relationships between staff and prisoners, out to prisoners’ families, amongst prisoners themselves, between oversight bodies, staff and prisoners, and between various grades of staff. At the same time, prisons are eminently rule-bound institutions, subject to local regulation, national legislation, regional legal instruments and human rights norms, and international obligations. These act as checks on unrestrained power, regulating prison conditions, forms of disciplinary sanction, and contact with the outside world, and are crucial aspects of legitimate penal regimes, as the work of Ben Crewe, Alison Liebling and Sparks and Bottoms has shown.

Two essential elements of the rule of law in prisons are avenues of complaint for prisoners which are independent of the person or body making a decision about a prisoner, and mechanisms for inspection and monitoring on a regular basis. The European Prison Rules emphasise the importance of mechanisms for responding to complaints by prisoners and the possibility of an independent appeals process, while the Committee for the Prevention of Torture has stated that “effective grievance and inspection procedures are fundamental safeguards against ill-treatment in prisons” (2nd General Report). The European Court of Human Rights has also laid down the basic elements which any investigation into the death of a prisoner must comply with. In order to vindicate the procedural element of Article 2, which contains the right to life, an investigation into the death of a person in prison must be instigated by the state, be capable of establishing responsibility for any wrongdoing, involve the family of the deceased prisoner, be independent, and prompt. The Court has also emphasised the importance of effective investigations when allegations that a person has been the subject of torture (see, for example, Makhashevy v Russia). These are principles which transcend national borders.

Clarity and certainty in the law are also essential requirements of a system which is governed by the rule of law. The kinds of behaviour which might result in a disciplinary sanction must be clear to prisoners, and the circumstances in which a prisoner might be refused a visit with a family member or friend must also be readily understandable and have a basis in a law which is accessible to prisoners. In Moiseyev v Russia the European Court of Human Rights held that in matters which affected fundamental rights, it would be contrary to the rule of law that limitations on those rights would be subject to the exercise of unfettered discretion (see further Rogan, 2014).

Accountability in prisons is a critical concept for the safe running of prisons and the vindication of the rights of prisoners. It is also important that we learn more about how accountability mechanisms feel to both prisoners and staff, in order to advance our understanding of what accountability means, and why it is important in the prison context.

Accountability in our prisons: Blog for Justicia +

Prison Law at Dublin Institute of Technology

We are delighted that the School of Languages, Law and Social Sciences is the first academic institution to offer a module in Prison Law anywhere in Ireland.

I developed this module, and it first ran in 2014/15. The level of interest and engagement from students was heartening, and bodes well for the future of the subject, the legal profession and the prison system.

As Sharon Dolovich of UCLA has written so persuasively, prison law is an essential topic for law students. Our traditional courses tend to stop at the moment of conviction or sentencing. It is very rare for law students to examine what happens post-sentencing, and yet prisons are a hugely important source of public law. Classic administrative law decisions such as St Germain developed from a prison law issue.

This should come as no surprise. Prisons are places where the rule of law can be in peril, and the fairness of decision-making has important consequences for penal legitimacy. The good order of prisons is intimately connected with feelings of justice and fairness, amongst both prisoners and staff. Reasons for decisions, and opportunities to seek external redress are two critical elements in a prison system which upholds the value of the rule of law.

Prisons can also be important sources of human rights principles, and family law, particularly where visiting rights are at issue. As Hogan J has written in Connolly v Governor of Wheatfield Prison:

While due and realistic recognition must be accorded by the judicial branch to the difficulties inherent in the running of a complex prison system and the detention of individuals, many of whom are difficult and even dangerous, for its part the judicial branch must nevertheless exercise a supervisory function to ensure that the essence of these core constitutional values and rights – the dignity of the individual and the protection of the person – are not compromised … The obligation to treat all with dignity appropriate to the human condition is not dispensed with simply because those who claim that the essence of their human dignity has been compromised happen to be prisoners. …

The obligation to treat all with dignity appropriate to the human condition is not dispensed with simply because those who claim that the essence of their human dignity has been compromised happen to be prisoners. …

Prisons can test the limits of the universality of human rights principles, and the application of those principles in prisons teaches us much about human rights norms.

I look forward to seeing a generation of lawyers trained in prison law transforming jurisprudence on prison law and enhancing the accountability of the prison system. I hope our module on Prison Law will play a small part in that process.

More information on studying Prison Law as a CPD option can be obtained from: l.aw@dit.ie

Prison Law at Dublin Institute of Technology

Law Student Colloquium at Trinity College Dublin

The fourth annual Law Student Colloquium will be held in Trinity College Dublin on Saturday February 4, 2012. It will be followed by the first annual Brian Lenihan memorial address to be held in the GMB. The address is in recognition of Mr Lenihan’s substantial contribution to public life, his longstanding relationship with the law school as student, scholar and lecturer, and his tragic recent death. Judge Bryan McMahon will be speaking under the title of “Judging.” Former AG Paul Gallagher will chair. The event will be followed by a wine reception The email address for those wishing to get in contact is law.student.colloquium@gmail.com and further information can be found at http://www.tcd.ie/Law/studentcolloquium/. Kindly sponsored by William Fry and Allen and Overy.

Law Student Colloquium at Trinity College Dublin