Stress Him With Stench in Direct Provision. The Case of Joseph v. Ireland.
Direct Provision Case Brief – Joseph v. Ireland
Facts: Paul Joseph is a Canadian animal rights activist who filed asylum in Ireland in 2017. The International Protection Accommodation Service transferred Joseph to the Clare Centre in 2018. One day while Joseph was on a walk, he witnessed a group of friends bludgeoning a stray dog with a tree branch. When he arrived at Clare Centre, he reported the incident to management. Management informed Joseph they could not intervene. As a result, Joseph posted a message on the community board that read “Attacking animals is cruel, inhumane and wrong. It is a serious animal rights violation. If you see attacks of cruelty on animals contact me.” During the following week, Joseph’s call-to-action was taken down from the community board.
Days later Joseph noticed a foul smell in his room. He search for the scent throughout his room but could not locate evidence of a dead carcass. The pungent smell—what smelt to Joseph like roadkill—grew stronger as the days increased and seemed to be coming from the vent within his room. On this account, Joseph called an exterminator. However, the exterminator found no carcass within the vent; he only found blood. The exterminator instructed staff to report the incident to management as soon as practicable, as the blood could potentially spread diseases such as Salmonellosis, Campylobacter and Clostridium perfringens.
The staff in direct provision took no action. The next day, Joseph aired his concerns on his animal rights blog. He also called in the exterminator for a second time, who articulated they could not take action. After he did so, he noticed the smell became more pungent. It deprived him of sleep and also triggered his asthma.
Issue: Whether the pungent smell deprives Joseph of his right to peacefully exist within his home.
Rule: Article 8 of the European Convention on Human Rights protects the right to respect for an individual’s private life, their family life, their home and their correspondence (letters, telephone calls and emails). Further, Article 1(1) of the UN Convention Against Torture (1984) defines torture as:
“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. ”
Analysis of Joseph v. Ireland — Stress Him With Stench in Direct Provision
Article 8 ECHR
In Airey v. Ireland, the ECtHR examined Article 8 of the Convention and stated “The Convention is a living instrument, to be interpreted in the light of present-day conditions” (para. 26). The ECtHR further stated, Article 8 embraces the right to a healthy environment. This includes but is not limited to protection against pollution, nuisances caused by harmful chemicals, offensive smells, agents which precipitate respiratory ailments, noises and so on. See also, Guerra and Others v. Italy, where the Court was concerned by nuisances (smells, noise and fumes) caused by a waste-water treatment plant close to the applicant’s home, which affected her daughter’s health.
In the present case, the Authorities did not take necessary measures to ensure the effective protection of Joseph’s home. Here, the Authorities did not provide Joseph with essential information about the risks of the smell or about emergency procedures. In Deés v. Hungary, the ECtHR recalled that the Convention protected an individual’s right, not only to the actual physical area of his home, but also to the quiet enjoyment of that area from interferences such as noise, emissions or smells. In that case, the ECtHR found a violation of Article 8 of the ECHR (right to respect for private life and home).
Article 3 ECHR
Joseph complains of insufficient sleep over several consecutive days due to the smells and being awaken at what he refers to as “odd hours of the night.” He further alleges the treatment occurred on a continuous basis— weeks before his interview with the International Protection Office. In Strelets v. Russia, the ECtHR found similar conditions to constitute inhuman and degrading treatment:
the cumulative effect of malnutrition and inadequate sleep on the days of court hearings must have been of an intensity such as to induce in the applicant physical suffering and mental fatigue. This must have been further aggravated by the fact that the above treatment occurred during the applicant’s trial, that is, when he most needed his powers of concentration and mental alertness. (para 62).
In Strelets, the ECtHR found an Article 3 violation on account of the failure of the domestic authorities to provide the applicant with adequate sleep on the days leading up to his court hearing.
Conclusion: Based on the above, the ECtHR could likely find Ireland in violation of Article 3 and 8.
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