“I am also fully satisfied that by being denied the opportunity for meaningful contact with others, the prisoner in solitary confinement is prevented from being fully human. To prevent another from being fully human is by definition inhuman and degrading treatment.”

Those were the bold words of Ms Justice Donnelly in the case of Attorney General v Damache [2015] IEHC 339 in her judgment of 21 May 2015, wherein she refused to order the extradition of an Irish national to the USA, accused of committing offences of international terrorism

Mr Damache faced a superseding indictment containing two counts: conspiracy to provide material support to terrorists and attempted identity theft to facilitate an act of international terrorism. The indictment related to events in early 2009.

Mr Damache challenged extradition on a number of grounds including prison conditions at ADX Florence, a Supermax prison in Colorado. His legal team submitted that the conditions at ADX Florence amounted to solitary confinement and those conditions on their own or in conjunction with other restrictions such as special administrative measures (SAMs) violated Mr Damache’s ‘fundamental and constitutional norms.’

The conditions at ADX Florence were given a thorough examination by the European Court of Human Rights (ECtHR) in 2012 in the case of Ahmad and others v the United Kingdom [2012] ECHR 609. In the ECtHRs assessment, (paras 218-224) the isolation experienced by inmates at ADX Florence was ‘partial and relative’ and did not violate Article 3 ECHR, despite the Court observing that ‘it is not contested by the Government that conditions at ADX Florence are highly restrictive, particularly in the General Population Unit and in phase one of the Special Security Unit.’

The Irish Court in its impressive 162-page ruling respectfully disagreed with the findings of the ECtHR. It refused the extradition request on the grounds that it would be a ‘fundamental breach of the constitutional right to bodily and mental integrity, to the right to human integrity and violates the prohibition on inhuman and degrading treatment.’ Although couched in similar terms to the protection afforded by Article 3 ECHR, the question the court asked itself was whether the conditions at ADX violated Mr Damache’s constitutional right to protection from inhuman and degrading treatment. Where an individual is present within the jurisdiction of Ireland (regardless of citizenship) that person is entitled to the protection of the courts in ensuring that he or she is not subjected to inhuman and degrading treatment.

This judgment is important for extradition practitioners to take note of, as it is the first time that an extradition request has been refused to the USA on grounds that the specific prison conditions are inhumane and degrading. Many have raised such a challenge, but none thus far have succeeded.

Conditions at ADX Florence

The Irish High Court considered afresh the evidence of conditions at ADX Florence. Those first incarcerated at the ADX are housed in one of four general population units (GPUs). Unlike general population in the UK, the GPU at the ADX housed inmates in ‘single cell accommodation’ and provided ‘very restrictive procedures for the movement of the inmates, interaction with staff and other inmates, recreation, visitation and programming.’

These conditions alone were sufficient for Ms Justice Donnelly to state it was appropriate to term incarceration in the ADX as ‘solitary confinement’.

Those detained in the GPU were in their cells for 22-24 hours a day – some days there was no out of cell recreation provided. When inside the cells there is no direct or face-to-face contact with other inmates (although it was claimed inmates could communicate by shouting through the ventilation system). Inmates are permitted two 15 minute social telephone calls per month and five social visits per month. Due to the remote location of ADX, few receive visits.

The out of cell exercise at the ADX is limited to say the least. Inmates are taken to either an indoor cell on their own that is empty except for a pull up bar, or are permitted to have their recreation in an outdoor solitary cage known as the ‘dog run’ due to the cages’ uncanny resemblance to animal kennels.

The Government of the USA submitted to the Irish High Court that ‘insofar as an issue is raised in respect of Article 3 of the Convention of Human Rights, the decision in Barbar Ahmad is a complete answer.’ Ms Justice Donnelly disagreed.

Courts conclusions

The Court opined that there was ‘no real dispute’ that detention at ADX Florence is a form of solitary confinement.

“Prolonged isolation within a cell, limited ability to communicate with other inmates, limited telephone and other contact with family and friends, restricted interaction with staff and professional people and minimal out of cell time within small out of cell recreation space have all been established on the evidence.”

Ms Justice Donnelly concluded that: ‘prolonged exposure (in this case at least for 18 months) to involuntary solitary confinement exacts a significant psychological toll, is damaging to the integrity of the mind and is damaging to the bodily integrity of the person.’

Despite accepting that an internal administrative review process existed, it did not provide any real review of the merits of and reason for prolonged detention. There existed no meaningful judicial review of the conditions of detention.

It is important to note that Ms Justice Donnelly arrived at her conclusion without consideration of the controversial effects that SAMs would have on an inmate detained in an already restrictive regime. It is clear that the impact of SAMs would be to place the inmate under greater isolation.

The ruling is not a binding on the courts of England and Wales, but the careful analysis of Ms Justice Donnelly is likely to be persuasive. This decision is likely to be the subject of an appeal by the Government of the USA and could be reversed. For the time being, practitioners in England and Wales should be challenging extradition to the USA on Article 3 grounds where the defendant faces a real risk of being incarcerated at ADX Florence.

 

Read this article published in Crimeline here.