Committee against Torture hears response of Ireland

24 May 2011

The Committee against Torture this afternoon heard the response of Ireland to questions raised by Committee Experts on the initial report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Responding to a series of questions raised by the Committee members on Monday, 23 May, the delegation, which was led by Sean Aylward, Secretary General, Department of Justice and Equality of Ireland, said that given the overall dire economic situation, Ireland was not in a position to restore funding that had been cut from the Human Rights Commission and the Equality Authority, but the Government would work with these bodies to assist them in working within their current budgetary allocations. Addressing a point about the proliferation of ombudsman offices and possible confusion among citizens, the delegation said that even experienced public officials could find this delivery landscape confusing and no sector of the Government could be immune from organizational reform or reorganization.

On the issue of inter-prisoner violence, the delegation said that no level of such violence was acceptable. Every effort was made by prison staff and management to limit the scope of acts of violence. However, no regime could completely eliminate the possibility of violent incidents happening in a prison setting where a large number of dangerous and violent offenders were being held. When one considered that in 2010 the Irish Prison Service provided over 1.5 million bed nights to predominately young males, the number of assaults, particularly those using a weapon, was comparatively low. There was a total of 1,014 incidents of violence among prisoners during the year and this included very minor incidents. Moreover, attacks by prisoners on prisoners were usually not random acts of violence, but rather they were related to matters in the outside such as drug debts or gang rivalries, which prisoners did not leave at the prison gates when they were admitted.

The delegation then turned to immigration and asylum issues because a number of Committee members had raised questions about the low numbers for the recognition of refugee status claims. One of the reasons for this was that Ireland did not operate a single procedure and therefore their recognition rate did not include subsidiary protection decisions and decisions made for humanitarian reasons at first instance. There were other reasons Ireland’s recognition rate was relatively low. First, the profile of their asylum applicant differed from many other European Union Member States which was likely due to their geographic location and the fact that access to Ireland by persons fleeing persecution was less direct. There had also been a fall in applications from high grant countries such as Iraq. Iraqi applicants accounted for some 27 per cent of the grant rate in 2007, but had dropped significantly since then. In 2007 Iraq accounted for 7 per cent of asylum applications, but that figure dropped to only 1.5 per cent in 2010. This type of reduction in applications from high grant countries would of course have a bearing on overall grant rates.

The Committee will submit its conclusions and recommendations on the report of Ireland at the end of the session on Friday, 3 June.

As one of the 147 States parties to the Convention against Torture, Ireland is obliged to provide the Committee with periodic reports on the measures it has undertaken to fight torture.

The next public meeting will be at 10 a.m. on Friday, 27 May when it will discuss follow-up to articles 19 and 22 of the Convention concerning communications and concluding observations.

Response of Ireland

Responding to a series of questions raised by Committee Experts on Monday, 23 May, the delegation of Ireland said that in terms of the definition of torture, it included not only acts of torture, but failure to stop such acts or acts of omission. Far from limiting the definition it actually expanded the application of the Convention. The extraterritorial application of the provisions of the Convention was applicable under Irish law so someone could be extradited to or from Ireland to be tried for torture. Ireland did not extradite people to countries where they could be subject to capital punishment because Ireland did not believe in the death penalty.

Turning to the ratification of the Optional Protocol, the Government had given the green light to move forward with a draft legislative scheme last week and the hope was that it could be published early next year. The ratification of the Optional Protocol would require the establishment of a monitoring body.

Turning to questions raised about women who were institutionalized in places called Magdalene laundries when they were children or young women, the delegation said that to the best of their knowledge these women had not gone to the police to file complaints about what had happened in these institutions. If these women had details of possible offences that could be investigated under the criminal law they were invited to come forward and see the police. These institutions were privately run facilities and the people who went there did so voluntarily or with the consent of their parents if they were minors. Also, these alleged events happened a long time ago so it was hard to ascertain the facts of the matter. The Government was attempting to address these allegations and provide redress.

Regarding female genital mutilation, there was a proposed bill to prohibit this practice and related offences and it would provide for imprisonment of up to 14 years, fines or both.

The delegation said that given the overall dire economic situation, Ireland was not in a position to restore funding that had been cut from the Human Rights Commission and the Equality Authority, but the Government would work with these bodies to assist them in working within their current budgetary allocations. Addressing a point about the proliferation of ombudsman offices and possible confusion among citizens, the delegation said that even experienced public officials could find this delivery landscape confusing and no sector of the Government could be immune from organizational reform or reorganization.

Turning to children’s detention schools, the Committee was told that there was a written complaints procedure which had been reviewed and updated in 2010. This allowed for an appeals process if the young person was unhappy with the findings of the complaints process and this process was outlined in a booklet that was given to every young person upon admission to the detention schools. The three detention schools were regularly inspected and all staff employed in the schools were subject to vetting by the police prior to appointment. A comprehensive new vetting policy had been developed and was being implemented across all the detention schools.

Regarding St. Patrick’s Institution, the delegation said this was a closed medium security place of detention for males aged 16 to 21 years serving sentences up to life. It had a bed capacity of 217 and boys and young adults were separated insofar as was possible. Education in prisons was delivered by way of a partnership between the Irish Prison Service and a range of educational agencies from the community. A number of vocational workshops were currently in operation in the work/training area of the main prison. One psychologist was employed at St. Patrick’s and was available to the entire population; dealing with mental health issues formed a significant part of the work of the psychologist.

The delegation went on to detail measures that had been taken to modernize prisons with in-cell sanitation as well as renovation of prisons to help reduce overcrowding and improve conditions in prisons. At present, 72 per cent of prisoner accommodation had in-cell sanitation and this number would rise to 80 per cent when the extension of the Midlands Prison was completed in 2012. The Irish Prison Service also had toilet patrols in operation until late evening in Mountjoy, Cork and Limerick prisons. Staff provided this function after final lock in the evenings. Prisoners requesting to use toilet facilities after these times were accommodated where possible. The possibility of extending toilet patrols would be examined by the Irish Prison Service.

On the issue of inter-prisoner violence, the delegation said that no level of such violence was acceptable. Every effort was made by prison staff and management to limit the scope of acts of violence. However, no regime could completely eliminate the possibility of violent incidents happening in a prison setting where a large number of dangerous and violent offenders were being held. When one considered that in 2010 the Irish Prison Service provided over 1.5 million bed nights to predominately young males, the number of assaults, particularly those using a weapon, was comparatively low. There was a total of 1,014 incidents of violence among prisoners during the year and this included very minor incidents. Moreover, attacks by prisoners on prisoners were usually not random acts of violence, but rather they were related to matters in the outside such as drug debts or gang rivalries, which prisoners did not leave at the prison gates when they were admitted.

The delegation went on to say that as a direct consequence of enhanced security measures that were introduced in recent years, the number of actual weapons being seized had reduced dramatically. With reference to the 1,499 weapons seized in 2010, in excess of 95 per cent of these were homemade or improvised. It was important to note that in most cases confiscated weapons were found during routine searches or retrieved at the entry point of the prison and were never actually used as a weapon within the prison.

Safety observation cells would only be used on medical grounds and their use would have to be certified by medical personnel, namely a doctor. Prisoners had a number of avenues open to them to file complaints and there was also an enhanced grievance procedure and a number of recommendations from the Committee on the Prevention of Torture had been implemented across the entire prison system by way of a Prisoner Complaints Investigation Policy which had gone into effect in January 2010.

The delegation then turned to immigration and asylum issues because a number of Committee members had raised questions about the low numbers for the recognition of refugee status claims. One of the reasons for this was that Ireland did not operate a single procedure and therefore their recognition rate did not include subsidiary protection decisions and decisions made for humanitarian reasons at first instance. There were other reasons Ireland’s recognition rate was relatively low. First, the profile of their asylum applicant differed from many other European Union Member States which was likely due to their geographic location and the fact that access to Ireland by persons fleeing persecution was less direct. There had also been a fall in applications from high grant countries such as Iraq. Iraqi applicants accounted for some 27 per cent of the grant rate in 2007, but had dropped significantly since then. In 2007 Iraq accounted for 7 per cent of asylum applications, but that figure dropped to only 1.5 per cent in 2010. This type of reduction in applications from high grant countries would of course have a bearing on overall grant rates.

The delegation said that in terms of summary deportation, the Immigration Residence and Protection Bill as it now stood did not provide for summary deportation, so people could not be kicked out of the country and the prohibition on non-refoulement was in place. The bill also provided for extensive notice requirements and review processes for the different types of decisions that arose at various stages of the immigration process.

The delegation then went on to address health issues, including the issue of persons with intellectual disabilities residing in psychiatric institutions. The Irish Government’s policy for the planning and delivery of services to people with disabilities was that they should be given the opportunity to live as full a life as possible and to live with their families and as part of their communities for as long as possible. One of the core principles underlining Government policy in the disability sector in Ireland was ensuring that health services were people centred. This approach was being adopted throughout the sector by service providers. It should be noted that the majority of people in residential care homes were there on a voluntary basis with the approval of their families. However, the Government planned to introduce mental capacity legislation to ensure the rights of incapacitated persons and wards of the court were protected. With relation to persons with intellectual disabilities residing in psychiatric institutions, there were 308 individuals with an intellectual disability over the age of 20 who were accommodated in psychiatric hospitals.

The delegation then moved on to domestic, sexual and gender-based violence. The National Strategy on Domestic, Sexual and Gender-Based Violence set out an understanding of domestic and sexual violence, both internationally and in the Irish context. It also discussed the prevalence of such violence in Ireland and the evidence available on various forms of gender-based violence in Ireland reflected the global picture. There were four types of domestic violence orders: protection orders, safety orders, interim barring orders or barring orders. Marital rape had been criminalized under Irish law since 1990. As regards the immigration status of migrant victims of domestic violence, the position was that it was open to all foreign nationals with current permission to remain in the State to apply to the Minister for Justice and Equality for a change in status, provided they included in their application the reason for seeking this change. There was no automatic right of residence for such victims and each case was assessed on its own merits. Appropriate evidence of domestic violence was required in such cases. The immigration status of the abusive spouse or partner would have to be looked at in cases where domestic violence was proven in the courts.

The police force was virtually in full compliance with the requirement to record all police interviews. All persons detained in police custody were entitled to consult a lawyer as many times as they wished. The Criminal Justice Act of 1984 provided that suspects in custody be told right away of their right to an attorney and this information was provided orally and in writing in multiple languages.

The delegation said that with the enactment of the Criminal Law Act 2008, which criminalized the sale of persons, including children, for any purpose, most of the provisions of the Optional Protocol with regard to criminal law measures had been provided for in legislation. The Minister of Justice and Equality was preparing sexual offences legislation which would provide greater protection to children against sexual abuse and sexual exploitation. The legislation would take account of the outstanding requirements of the Optional Protocol that were the responsibility of the Department of Justice ad Equality. It was expected that these legislative proposals would be brought to the Government in the coming months. Training and awareness-raising for police officers and other officials had also been carried out, including for legal aid workers who provided legal advice to victims. Communities that might be vulnerable to trafficking, such as immigrant communities, were also targeted through publications, public service announcements and advertisements during sporting events and there was also engagement with civil society.

There were no plans to change the age of criminal responsibility in Ireland. In October 2006 the age of criminal responsibility was effectively raised from 7 to 12 years of age. Under the new provisions, no child under the age of 12 could be charged with an offence. An exception was made for 10 and 11 year olds charged with various serious offences, such as unlawful killing, a rape offence, or aggravated sexual assault. In addition, where a child under 14 years of age, but over 10 or 12 was charged with an offence, no further proceedings could be taken without the consent of the Director of Public Prosecutions.

It was the intention of the Irish Government to ratify the Convention on the Rights of Persons with Disabilities as quickly as possible, taking into account the need to ensure that all necessary legislative and administrative requirements under the Convention were being met. Ireland did not become party to treaties until it was first in a position to comply with the obligations imposed by the treaty in question, including the amendment of domestic law as necessary.

The delegation then noted that there was no defence for torture, so people could not claim that they were acting on orders from a superior, nor could exceptional circumstances such as a state of war or threat of war, internal political instability or any other public emergency be used as a defence of torture.

Questions by Committee Experts

LUIS GALLEGOS, the Committee Expert serving as Rapporteur for the report of Ireland, made comments on several areas including on the definition of torture, the Government’s role in renditions and the number of ombudsmen in the country and the difficulty this could pose to citizens. He also asked the delegation to consider putting the Human Rights Commission under the parliament rather than executive branch to provide more independence. Ireland had no mandatory inspections for facilities providing care to persons with disabilities. Did they have a way of monitoring these institutions? Despite their laws in place against human trafficking, he still felt that it was important that Ireland adopt the Optional Protocol against human trafficking as it was still a valuable instrument in terms of the conformity in monitoring that it provided.

MYRNA KLEOPAS, the Committee Expert serving as Co-Rapporteur for the report, said she hoped that conditions in prison would continue to be improved, despite budget cuts. What other measures did they intend to take to alleviate prison overcrowding, such as cutting down sentences for drug offences? For example, decreasing sentences for people who were drug addicts and who were sentenced on drug possession with no intent to sell could help reduce overcrowding as well as rehabilitate people who were addicts and not drug dealers. Corporal punishment should not be accepted and parents and teachers should be given alternative ways to discipline children. There was no independent complaints mechanism for prisons. Were there any plans to extend the domestic violence law to cover women who were not married, but had a child? Could the delegation please clarify their stance on that?

Another Committee member said regarding women and girls institutionalized in facilities known as Magdalene laundries, the delegation said that their entry was voluntary, but voluntary meant that one went there willingly and was able to leave when they wanted to. This did not seem to be the case so were these girls and their parents informed about what they were getting into so that they could make decisions based on informed consent?

Committee Experts then made additional comments and raised some additional concerns, including on sexual violence in prisons, solitary confinement in prisons, the status of complaints made to the Human Rights Commission, the difference between voluntary and involuntary admissions to psychiatric hospitals and the ability of people to leave when they wanted to. Could there be a public investigation of these Magdalene laundries, with the use of public records, to establish the facts rather than waiting for women to come forward one by one to lodge complaints? Did the State consider female genital mutilation torture? Under the domestic laws of Ireland, was corporal punishment in a family setting prohibited and if not was this considered a violation of the Convention against Torture?

Response by Delegation

Responding to additional questions raised, the delegation of Ireland replied that there had been a change in Government so they might not be able to answer some of the questions because the new Government had only been in office for eight weeks so they were still forming their positions on certain issues.

A lot of Irish parents would be utterly shocked that giving their child a clip on the ear would be considered torture and such a suggestion from any quarter would not be taken well. The delegation would have to reflect further, but an absolute prohibition on chastising children in the home was a tricky issue. The State did not endorse the practices of rituals of female genital mutilation and they were working to prohibit such practices.

In terms of delays in processing asylum applications, a great deal of the time it was in the best interest of the applicant to drag out the process and delay it and their lawyers used every conceivable human contrivance to delay and defer the outcome when the application was manifestly incorrect and ill-founded. It had almost become a legal racket to string out the process of these applications and it undermined the credibility of the State and its processes.

Many Committee members had raised questions about the Magdalene laundries and the delegation had laid out that these were not State-managed institutions and the powers and responsibilities of the State did not exist when these institutions flourished. Also, the side of the people who ran these institutions had not been heard yet either. The delegation could go no further in addressing compensation schemes or any other forms of redress.

Death by misadventure referred to someone who caused their own death, for example by drug overdose.

Going forward, the standard for all new Irish prison accommodations would include toilets and wash basins and would be up to the best international standards.

The delegation said that it would provide additional information in writing in the coming days.

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