Jailed former politician Ivor Callely wants the High Court to overturn Justice Minister Frances Fitzgerald's refusal to grant him temporary release or enhanced remission.
Callely (56) was jailed last July after it was found that he fraudulently claimed €4,207.45 in expenses from the Oireachtas on forged mobile phone invoices.
He pleaded guilty and was sentenced to a total of five months in prison by Judge Mary Ellen Ring.
He started serving the sentence in Mountjoy Prison, before being transferred to Wheatfield Prison in Clondalkin, Dublin, where he is currently incarcerated.
Ms Justice Mary Faherty granted lawyers for Mr Callely leave to have the Minister's refusal judicially reviewed. Permission to bring the case was granted on an ex-parte (one side only represented) basis.
The court heard Callely is a model prison and had applied for, but was refused, temporary release by the Minister.
Refusing the application on October 28 last, the Minister said she was "of the view that the breach of trust and abuse of public funds by a member of the Oireachtas must be considered in the most serious terms and Mr Callely is not considered suitable for temporary release at this stage of his sentence."
He claims the Minister's decision is unfair and he is not being treated the same as other prisoners, who have committed more serious crimes. The decision flies in the face of or reason common sense and is unfair in the circumstances, it is argued.
The Minister, he claims, has been unfairly influenced by his high profile, and the prospect of the adverse public reaction of the early release of a former politician.
The Minister's judgment, he argues, has been clouded as she has afforded a special significance to the offences based solely on Mr Callely's profession, and the origins of the funds.
In an affidavit, Mr Callely said he has been told by prison staff that he should not be in jail and is only being kept there because of his high profile.
He also said the Minister had turned down his request despite the fact that she (Minister) granted temporary release to a former Fine Gael councillor, a member of the same political party as Minister Fitzgerald.
Kieran Kelly Bl, for Callely, said his client met all the criteria entitling him to temporary release.
These included that his client was sentenced for a first time offender for a non violent crime. He was sorry for he did and had repaid the money, and did not pose a threat to society.
He had also received positive recommendation from the prison Governor, and was deemed to be an enhanced prisoner, counsel said.
Judge Ring in imposing the sentence had stated that the fact a former member of the Oireachtas got a custodial sentence was more important than the length of the sentence and this, counsel said, should also have been taken into consideration by the Minister.
Counsel added if his client, who on arrival to prison was placed in 23 hour lock up for his own protection, is granted a third remission, as compared to the normal one quarter, he would be entitled to immediate release from prison.
The action is against the Minister and the Governor of Wheatfield Prison.
The case comes back before the court next week.