High Court judgment brings clarity to use of solitary confinement - IHREC - Irish Human Rights and Equality Commission

High Court judgment brings clarity to use of solitary confinement

The Irish Human Rights and Equality Commission today said the High Court decision concerning a request for the extradition of an Irish Citizen to the United States has clarified the relevance of constitutional rights to issues such as solitary confinement.

The High Court refused the request for extradition on the basis that there is a real risk that the applicant’s human rights would be breached if sent to the United States (US) to stand trial as he risked being exposed to a protracted period of solitary confinement in the US prison system.

The Commission provided assistance to the court in its capacity as amicus curiae (friend of the court), advising on the appropriate test to be applied by the Courts in extradition cases where there is a prospective breach of fundamental rights under the Constitution and the European Convention of Human Rights (ECHR).

In these proceedings, the Respondent, Mr Damache, an Irish Citizen, challenged his proposed extradition to the US to face charges on a number of terrorism-related offences, primarily relating to communications on the internet. The Respondent alleged that he faced a possible breach of his constitutional rights and also those under the ECHR in various respects.

The Court found that based on the evidence, Mr Damache was at real risk of being subjected to solitary confinement at ADX Prison, Colorado, a super maximum security prison, if convicted of the alleged offences.  The Court found on the facts that if incarcerated in solitary confinement in ADX Prison, Mr Damache would likely face isolation from any meaningful contact and communication with either staff or other inmates for prolonged periods of time, at a minimum for a period of 18 months, which would amount to a breach of his constitutional right to be protected from inhuman and degrading treatment and to respect for the dignity of the human being.

The Commission became involved in the case as amicus curiae, in circumstances where the case raised a number of important human rights issues, specifically in relation to whether the Constitution provides protection against solitary confinement, even if that solitary confinement would occur in the State requesting the extradition. 

The Commission considers this as an important case in clarifying the relevance of constitutional rights to issues such as solitary confinement and further develops constitutional protections in respect of inhuman and degrading treatment. This case is not only significant in relation to extradition, but is also important in the context of the Irish Prison System, where the High Court recently found in McDonnell v The Governor of Wheatfield Prison that holding a prisoner in solitary confinement for his own safety for over 11 months was in breach of his constitutional rights. The Commission also appeared as amicus curiae in that case.


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Notes to Editor:

The Extradition proceedings:

The IHREC has assisted the court in respect of the following human rights issues:

(1) the application of the concept of “inhuman and degrading treatment” in the context of prison conditions, de facto life sentencing and solitary confinement under the Constitution and under international law;

(2) In relation to matters concerning a right to a fair trial, the types of breaches, or cumulative breaches, which fall within the meaning of “a flagrant denial of justice” as required by the European Court of Human Rights in order for a prospective breach of Article 6 (right to a fair trial) of the European Convention of Human Rights (“the ECHR”) to necessitate a prohibition on extradition, and whether a like requirement arises under the Constitution; and

(3) the relevant tests which should be applied when considering whether a person’s rights under Article 9 of the ECHR (freedom of thought, conscience and religion) have been violated and when a refusal to extradite an individual should result where a prospective breach of this right arises in the context of extradition proceedings.

Ancillary proceedings:

The Commission was also granted liberty to appear as amicus curiae in the judicial review proceedings, Ali Charaf Damache v. the Director of Public Prosecutions (DPP) & others (Record nos. 2013/670/JR and 2014/112/JR)) which concerned the question of whether there was an obligation on the DPP to consider the issue of jurisdictional forum when deciding whether to pursue a prosecution against Mr Damache; also whether the DPP has a legal obligation to give reasons for a decision not to direct a prosecution, and if so, in what circumstances such an obligation would arise.  These proceedings were heard together within the extradition proceedings.

In the context of connected judicial review proceedings the Court found, drawing from the Commission’s submissions, that there was an obligation on the DPP to consider the issue of  jurisdictional forum, in the context of whether another EU Member State has jurisdiction to try Mr Damache on the basis of the alleged facts. As the Court considered that this was the central issue in the context of the judicial review proceedings, the other remaining issues were not dealt with.

Other High Court Case

The Judgment in McDonnell v The Governor of Wheatfield Prison delivered on 18 February 2015, concerned the alleged solitary confinement of a prisoner in the interests of his own safety. In its judgment the Court confirmed that although the Applicant is a convicted prisoner and as such he is deprived of the right to liberty, he still retains his other constitutional rights, including the right to bodily and psychological integrity. The Court noted that the 22 or 23 hour lockup regime amounts to solitary confinement. In defining solitary confinement the Court had regard to the report of the Special Rapporteur of the UN Human Rights Council on Torture and other international sources on the use and effects of Solitary Confinement.

The Court stated that the solitary confinement of the Applicant for eleven months in that case amounted to a clear and sustained violation of his constitutional right to bodily and psychological integrity. Although justified on the basis of the Applicant’s own protection, it was disproportionate to the stated risk to him. It was found that solitary confinement can cause significant psychological harm to prisoners and should be used only in exceptional circumstances and for a limited period of time. After 3 or 4 weeks there should be an intensive review of such cases to ensure the conditions can come to an end at the earliest possible time.

Further information on IHREC:

  • The Irish Human Rights and Equality Commission is an independent body, established in law on 1st November 2014.
  • The Chief Commissioner Emily Logan was appointed through open competition; all fourteen members of the Commission were appointed through an independent selection panel.
  • The Chief Commissioner and all fourteen members of the Commission were appointed by President Michael D. Higgins on 31st October 2014 and account directly to the Oireachtas for their statutory functions.
  • Under Irish Human Rights and Equality Commission Act 2014 (2014 Act), the IHREC has a statutory remit to protect and promote human rights and equality in the State, to promote a culture of respect for human rights, equality and intercultural understanding, and to promote understanding and awareness of the importance of human rights and equality.
  • The power of the IHREC to apply and appear as amicus curiae is derived under Section 10 of the Irish Human Rights and Equality Commission sets out the functions of the IHREC.

Section 10(2)(e)  provides that the IHREC shall have a function: “to apply to the High Court or the Supreme Court for liberty to appear before the High Court or the Supreme Court, as the case may be, as amicus curiae in proceedings before that Court that involve or are concerned with the human rights or equality rights of any persons and to appear as such an amicus curiae on foot of such liberty being granted (which liberty each of the said courts is hereby empowered to grant in its absolute discretion).”

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