II ASSESSMENT OF COMPLIANCE WITH INTERNATIONAL OBLIGATIONS
A
Compliance with
international obligations at the domestic level
“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.[1]
It is incumbent upon the State to ensure that all persons upon its territory are free from ill-treatment. Moreover, certain international instruments[2] recognise that a higher level of protection may be required in respect of one particularly vulnerable group; persons deprived of their liberty.
In Ireland, the State’s capacity to protect this right has most often been called into question in respect of persons deprived of their liberty; consequently, the focus of this section of the audit is on whether the State can be said to be fulfilling its obligation to provide such persons with an adequate level of protection against ill-treatment. In order to reflect the varying legal situations, and different legal status of the persons concerned, a distinction is drawn between persons deprived of their liberty by An Garda Síochána[3] and those held in prisons.
Domestic law[4] offers a range of formal legal safeguards to persons deprived of their liberty by the Garda Síochána which have been characterised by an international monitoring body as “on the whole … adequate”.[5] However, the body concerned – the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) – has also identified some areas where there is a need to strengthen the extent to which members of the Garda Síochána are held accountable for their actions, and to complete the existing set of formal legal safeguards (see below). The domestic legislation which governs the treatment of persons held in prisons – the Rules for the Government of Prisons, 1947 – is widely considered to be completely outdated. Draft Prison Rules to replace the 1947 Rules with a modern legislative framework were produced as long ago as 1994,[6] however, at the time of writing, they have yet to enter into force.
With regard to international human rights law, the State has ratified the majority of the international instruments relevant to the prohibition of ill-treatment, with the notable exception of the United Nations Convention against Torture (CAT). These instruments include: the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (currently being considered for possible incorporation into domestic law) and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT). These instruments are supplemented by international standards developed by the United Nations and the Council of Europe including: the United Nations Code of Conduct for Law Enforcement Officials and the Council of Europe Declaration on the Police. [7]
Ensuring that persons deprived of their liberty enjoy the right to freedom from ill-treatment places the State under both a negative obligation (to ensure that state actors refrain from engaging in abuse), and a range of positive obligations. These positive obligations include: taking appropriate steps to protect individuals from non-state actors (e.g. other prisoners) who may wish to cause them harm; providing a comprehensive set of formal legal safeguards against ill-treatment and ensuring that such safeguards are actually applied in practice.
The State’s compliance with its duty to protect persons deprived of their liberty against ill-treatment is monitored by international bodies in a number of ways. United Nations mechanisms[8] require that Ireland submit periodic reports on subjects including the administration of justice; the European Court of Human Rights examines allegations of violations of Article 3 of the European Convention on Human Rights (ECHR) which are drawn to its attention, and the European Committee for the Prevention of Torture (CPT) carries out proactive monitoring of the situation in places of detention.
With regard to the last-mentioned mechanism, Amnesty International has taken particular note in this audit of the reports of the CPT on its visits to Ireland in 1993 and 1998. The CPT reports, and the Governments responses to those reports, provide detailed information on areas where the State has fallen short of compliance with international obligations. The CPT has engaged in a constructive and detailed dialogue with the State and has recommended measures it should take in order to comply with international law. Given that the CPT’s work is designed to strengthen the prohibition of ill-treatment set out in Article 3 of the ECHR, Amnesty International urges states to implement the CPT’s recommendations.
Amnesty International is concerned that the Irish Government has yet to demonstrate that the State is in a position to comply with the requirements of the above-mentioned monitoring bodies in respect of the following policing and prisons issues.
Amnesty International continues to receive letters from people detailing allegations of ill-treatment by members of the Garda Síochána.[9] Further, although the formal legal safeguards offered to persons deprived of their liberty by the Garda Síochána have been characterised by the CPT as “on the whole … adequate”,[10] the CPT has indicated that the persistence of allegations regarding the use of force by police officers “highlights the need for the Irish authorities to remain particularly vigilant in this area.”[11] It has made recommendations designed to strengthen the extent to which members of the Garda Síochána are held accountable for their actions, and to complete the existing set of formal legal safeguards, especially as regards the content of the right of access to a lawyer. The CPT has stressed that - in the interests of the prevention of ill-treatment - there is a need to strengthen the extent to which members of the Garda Síochána are held accountable for their actions, both at internal force level, and as regards the handling of complaints.
accountability and force
management
At internal force level, the primary task of ensuring compliance with the (high) standards set out in the above-mentioned 1987 Regulations falls upon the Garda[12] "member in charge" of each police station, reporting to the Superintendent responsible for each policing district. However, in the reports on its 1993 and 1998 visits, the CPT has indicated that it is not convinced that the arrangements currently in place enable senior officers adequately to supervise the work of "members in charge" and, through them, to monitor the conduct of other police officers.[13]
Some efforts would appear to have been made to enhance the degree of accountability at internal force level. Particular reference should be made, in this respect, to the Garda Human Rights Initiative 1999-2000, which was instituted as a direct response to the Council of Europe programme Police & Human Rights 1997-2000.[14]
As part of the initiative, the Garda Síochána have established a working group, which has produced an “action plan” recommending inter alia: the establishment of “a programme focusing on the further development of human rights training in the Garda Síochána for students, supervisors, trainers, managers and specialist groups” and “the carrying out of a human rights audit to proof all organisational policies, processes and procedures to ensure that they are in keeping with human rights legislation and charters”.[15]
Moreover, in December 2000, the Council of Europe launched a new programme, “Police and Human Rights – Beyond 2000”,[16] with which it is to be hoped the Garda Síochána will remain associated.
accountability and the handling of complaints
At present, the statutory duty[17] to investigate complaints which could amount to a criminal offence or a breach of discipline falls upon the Garda Síochána Complaints Board. The independence and impartiality of this body – which includes serving members of the Garda Síochána on the Board itself, and on disciplinary tribunals appointed by the Board - has been criticised by the CPT in both its 1993 and 1998 reports.[18] In its August 2000 briefing to the UN Human Rights Committee,[19] Amnesty International has stated its view that the current procedure does not give the Garda Síochána Complaints Board sufficient powers for it to be perceived as independent and efficient and has noted the acknowledgment that this is the case by the Complaints Board in its own annual report of 1999. In turn, the UN Human Rights Committee recently expressed its view that the Board is not fully independent. [20]
The completion of a review of the Garda Síochána (Complaints) Act, 1986 is still pending. Once this review has been completed, Amnesty International understands that proposals will be brought to Government for possible amendment of the aforementioned Act.[21] Towards the end of 2000 there was much public debate on this issue. On 23 November 2000, the Labour Party published proposals for legislation[22] which were largely based on the recommendations of the Patten Commission in Northern Ireland.[23] The proposals call for the establishment of a Garda Authority and a Garda ombudsman independent of the Garda Síochána, with the power to initiate investigations in the absence of a specific complaint, and to investigate and comment on Garda practices and policies.
In response, Garda Commissioner Patrick Byrne stated that “Garda management is not opposed, in principle, to having members of the Garda Síochána investigated under a Complaints process by external investigators”.[24] The Chairman of the Joint Oireachtas Committee for Justice, Equality and Law Reform, Sean Ardagh T.D., also responded to the Labour Party proposals and stated that proposals would be brought to Government to improve accountability within the Garda Síochána shortly.[25] Amnesty International will continue to observe developments in this regard.
the right of access to a
lawyer
Persons detained by the Garda Síochána benefit from a right of access to a lawyer[26], but this does not extend to having a lawyer present during questioning by the police. In its most recent report, in the context of developing safeguards against the ill-treatment of detained persons, the CPT invited the Irish authorities to take appropriate action to introduce such a right, a measure for which Amnesty International has also called.[27] Further, both Amnesty International and the CPT have recommended the provision of legal aid in order to extend an effective right of access to a lawyer to persons of insufficient financial means.[28]
The Government’s response to the CPT’s invitation on this subject contents itself with the observation that “the Irish courts have not held that as a Constitutional right a person has the right to have a solicitor present during interrogations themselves”.[29] Although the response points to other positive measures which are to be taken to enhance safeguards against ill-treatment for persons in police custody,[30] there is no indication that the Government intends to take any further action to implement a fully-fledged right of access to a lawyer of the sort envisaged by the CPT and called for by Amnesty International.
ii) Ill-treatment of
prisoners
The CPT has been careful to stress that its visiting delegations have found that “the great majority of prison officers were attempting to deal in a humane way with the prisoners in their charge”.[31] Nonetheless, during its 1993 visit to Ireland, the CPT found that “in at least some prisons in Ireland and, in particular, in Mountjoy and Limerick Prisons, there are certain officers who have a propensity to ill-treat prisoners”.[32]
In the report on its 1998 visit, the Committee recorded that, “there is no lack of awareness of this problem at governmental level. Indeed, in response to the CPT’s 1993 finding … the Government stated that it was ‘seriously concerned that there are individual officers [at Mountjoy Prison] whose attitude towards prisoners is the subject of suspicion by prison staff’ and acknowledged ‘probable wrongdoing’ by some staff at Limerick Prison’.”[33]
The President of the CPT has indicated that the Committee appreciates the “frankness” of such replies, but that the CPT “was – and is – concerned that most if not all of the prison officers in question still work at Mountjoy and Limerick Prisons and that little or no action has been taken against them”.[34]
The Government’s response to the
CPT’s 1998 report indicates that “the Department [of
Justice, Equality and Law Reform] is satisfied that there is no
systematic or intentional abuse of prisoners and that such
ill-treatment would not be tolerated by Governors, senior staff or
the Prison Officers Association.” However, it concedes that
“there are a number of officers whose attitude to prisoners is
not appropriate in the view of management. In the absence of clear
evidence of a breach of discipline by such officers such attitudes
are not sufficient to commence an action under the Disciplinary Code.
Therefore, in the case of those few officers being referred to,
reassignment to duties not involving contact with prisoners is the
only appropriate
response.”[35]
This response would seem to confirm that, as
the CPT has suggested, prison management do not yet have the
necessary tools effectively to manage the prisons of which they have
charge.
Of even more concern is the manner in which
the Government responds to the CPT’s remarks about the apparent
impunity enjoyed by certain prison officers at Limerick Prison who
are believed to have engaged in acts of ill-treatment of prisoners.
The Government’s response to the CPT’s 1998 report states
that “the fact that there was probable wrongdoing by some staff
in Limerick Prison in 1992, that these officers continue to work in
the prison and that no effective action has been taken against them
were dealt with in detail in the Government’s response to the
CPT’s report in 1993. The Government in its 1993 response
acknowledged probable wrongdoing by some staff in Limerick Prison in
respect of a series of incidents which took place in April, 1992. The
response explained why no effective action could be taken against the
officers concerned. An investigation was carried out by a
Departmental official who interviewed both officers and prisoners.
The official gave a guarantee of confidentiality to all those whom he
interviewed and on the basis of this investigation made a
confidential report to the Minister. Annexed to this report were
notes of the confidential interviews he had conducted. This led to a
situation where those officers could not be charged without releasing
to them the report to the Minister thus compromising the
confidentiality guarantees already
given.”[36]
Amnesty International is concerned that such a
response completely sidesteps the State’s responsibility under
international human rights law to ensure that law enforcement
officials do not enjoy impunity in respect of acts of ill-treatment
perpetrated upon those in their custody.
Some positive measures have been taken to
introduce a more modern framework for the management of prisons in
Ireland. An Interim Prisons Authority has been established; however,
at the time of writing, the Prison Service Bill which will give it
statutory authority has yet to be introduced. The Government has also
indicated that the Prison Service Bill will make provision for other
mechanisms – including a Prisons Inspectorate and re-structured
Visiting Committees – which are capable of enhancing the
protection of prisoners against ill-treatment by prison
officers.[37] Of the long-awaited new Prison Rules, there
is – as yet – no
sign.[38]
c)
Recommendations
In Amnesty International’s view, while at least certain of the measures set out above constitute steps in the right direction, they are – at best – an incomplete response to the human rights concerns which have been expressed by international monitoring bodies.
Consequently, the organisation recommends that the following measures be taken to strengthen the protection against ill-treatment afforded to persons deprived of their liberty.
· The Garda Human Rights Working Group should be provided with the necessary mandate and resources to continue to make an effective contribution to the new Council of Europe programme, Police and Human Rights - Beyond 2000.
· The necessary means should be made available to ensure the effective implementation of key elements of the action plan drawn up by the Garda Human Rights Working Group, including human rights training and the carrying out of a human rights audit of policing policies, processes and procedures.
· Statutory provision should be made for a fully independent police complaints procedure.[39] The procedure to be introduced – which might usefully be modelled on the Office of Police Ombudsman which has recently been introduced in Northern Ireland – should include the following elements:
§ investigation of all complaints by external investigators who are wholly independent of the Gardaí;
§ the power to initiate an investigation even in the absence of a specific complaint;
§ an independent investigation to be automatically triggered whenever a person in police custody dies, or there is reason to believe that a person’s death may have occurred as the result of the behaviour of a police officer.[40]
· The Government should introduce a right for persons in police custody to have a lawyer present during police interrogations.
· Expedited steps should be taken to introduce a modern framework for the management of prisons in Ireland, including:
§ the introduction, at the earliest possible opportunity, of a Prison Service Act, making provision, inter alia, for an independent Inspectorate of Prisons and restructured Visiting Committees;
§ the introduction, without any further delay, of new Prison Rules[41].
· An independent inquiry should be carried out into whether the manner in which complaints against prison officers have been investigated has, in the past, led to certain officers enjoying impunity in respect of the acts of ill-treatment against prisoners in which they may have engaged. In the context of that inquiry, particular attention should be paid to the lessons which can be learnt from the manner in which the above-mentioned investigation into allegations of ill-treatment at Limerick Prison was conducted. Amnesty International wishes to stress that, should such an inquiry find that certain prison officers have enjoyed impunity in respect of their actions, it remains incumbent upon the State to find a means to open disciplinary and/or criminal proceedings against the officers concerned. The inquiry should also examine the complaints procedures and make recommendations for ensuring that complaints can be impartially, independently and thoroughly investigated; the inquiry could also examine the need to establish a Prison Ombudsperson.
·
The Government should ratify the UN
Convention against Torture
(CAT) without delay.
Amnesty International has also addressed a
number of recommendations to the Irish Human Rights Commission
regarding the protection of the right to freedom from ill-treatment
(see section IV below).
[1] Article 7, International Covenant on Civil and Political Rights and Article 5, Universal Declaration of Human Rights.
[2] For example, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
[3] In the Irish language, An Garda Síochána means Guardians of the Peace; it is the name of Ireland’s Police Service.
[4] Including, in particular, the Criminal Justice Act 1984 and the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987.
[5] See paragraph 21 of the report on the second
visit to Ireland by the European Committee for the Prevention of
Torture (CPT). Document CPT
/ Inf (99)
15.
[6] See Appendix 1 to The Management of Offenders, A Five Year Plan, Department of Justice, 1994.
[7] Resolution 690 (79) of the Parliamentary Assembly of the Council of Europe.
[8] For example, the International Covenant on Civil and Political Rights, which requires states to submit periodic reports to the Human Rights Committee - a treaty body established by the Covenant - detailing measures taken by the State to comply with the provisions of the Covenant.
[9] See further: Amnesty International, “Ireland, Briefing to the UN Human Rights Committee on Human Rights Concerns”, EUR 29/001/2000, August 2000. This Briefing was submitted in the context of the Committee’s consideration of the second periodic report of Ireland to the Human Rights Committee under the ICCPR.
[10] See paragraph 21 of the report on the second
visit to Ireland by the European Committee for the Prevention of
Torture (CPT). Document CPT
/ Inf (99) 15.
[12] Garda is the Irish word for a police officer (singular). Gardaí is the Irish word for police officers (plural) and for the police (the Gardaí).
[13]
In the report on its 1993
visit, the CPT recorded
that “it appeared that senior officers only rarely made
unannounced visits to police stations, during which they inspected
custody records and spoke to detained persons”, while “its
delegation’s findings during the 1998 visit suggested that there
had been no significant augmentation in the intensity with which
senior officers were pursuing these
tasks”. See
paragraph 55 of the 1993 report (CPT / Inf (95) 14), and paragraph 18
of the 1998 report (CPT / Inf (99) 15).
[14] The underlying goal of the programme “Police & Human Rights 1997-2000” is for all police officers in the member states of the Council of Europe to be able to acquire a sound knowledge of human rights standards which have important implications for policing - in particular those embodied in the European Convention on Human Rights and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment - and to acquire the skills that will enable them to apply these standards to their daily working practice.
[15] See paragraph 39 of the Government’s response to the CPT’s 1998 report, document CPT / Inf (99) 16.
[16] Programme launched at the Council’s headquarters in Strasbourg on 11 and 12 December 2000.
[17] In terms of the Garda Síochána (Complaints) Act 1986.
[18] See paragraph 54 of document CPT / Inf (95) 14 and paragraph 16 of document CPT / Inf (99) 15. This criticism has been echoed at national level. See, for example, the paper, “Police Accountability and the Garda Síochána”, prepared by Professor Dermott Walsh for the recent international conference on “Policing and Human Rights” (Dublin Castle, 3 and 4 November 2000).
[19] Amnesty International, “Ireland, Briefing to the UN Human Rights Committee on Human Rights Concerns”, EUR 29/001/2000, August 2000.
[20] Concluding Observations of the Human Rights Committee: Ireland. 19/7/2000. CCPR/CO/69/IRL.(concluding observations/comments, Advance Unedited Edition).
[21]
“Monitoring of Garda Síochána”,
Letter by Sean Ardagh T.D., published in the Irish Times of 4
December 2000.
[22] “Proposals for legislation for a Garda Authority and Garda Ombudsman”, Labour Party, November 2000. See http://www.labour.ie
[23] See the Report of the Independent Commission on Policing for Northern Ireland, 1999.
[24] Address by Garda Commissioner Patrick Byrne at the IBEC Regional Luncheon, Hibernian Hotel, Dublin, 28 November 2000.
[25] “Monitoring of Garda Síochána”, Letter by Sean Ardagh T.D., published in the Irish Times of 4 December 2000.
[26] In terms, inter alia, of section 5 of the Criminal Justice Act
1984, and Regulations 9(2)(a)(ii), 11(1), 11(3) and 12(6) of the 1987
Regulations issued under that Act.
[27] Paragraph 22 of document CPT / Inf (99) 15 and Amnesty International, “Ireland, Briefing to the UN Human Rights Committee on Human Rights Concerns”, EUR 29/001/2000, August 2000.
[28] Amnesty International, “Ireland, Briefing to the UN Human Rights Committee on Human Rights Concerns”, EUR 29/001/2000, August 2000 and Paragraph 24 of document CPT / Inf (99) 15.
[29] Paragraph 48 of CPT / Inf (99) 16.
[30] For example, the phased nationwide introduction of audio/video recording of police interviews.
[31] Paragraph 36 of document CPT / Inf (99) 15.
[32] Paragraph 71 of document CPT / Inf (95) 14.
[33] Paragraph 37 of document CPT / Inf (99) 15.
[35] Paragraph 12 of document CPT / Inf (99) 16.
[36] Paragraph 13 of document CPT / Inf (99) 16.
[37] See the Government’s follow-up report to the CPT’s 1998 report, document CPT / Inf (2000) 8.
[38] At the time of writing, Amnesty International understands that the preparation of the new Prison Rules remains at the drafting stage.
[39] The UN Human Rights Committee has stated that the Government should give consideration to the establishment of a Police Ombudsman, see Concluding Observations of the Human Rights Committee: Ireland. 19/7/2000. CCPR/CO/69/IRL.(concluding observations/comments, Advance Unedited Edition).
[40] This measure would be in line with the recommendation of the UN Human Rights Committee that “In cases of death resulting from action by members of the Garda Síochána, the State party should ensure that all allegations are investigated by an independent and public process”; Concluding Observations of the Human Rights Committee: Ireland. 19/7/2000. CCPR/CO/69/IRL.(concluding observations/comments, Advance Unedited Edition).
[41] Any new Prisons Rules should, at a minimum, accord with the Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.