This compilation gathers the most important judgments and decisions on prison issues handed down by the European Court of Human Rights and the Court of Justice of the European Union. By reporting on the main trends in European prison case law, it aims to support legal practitioners in the prison field in their research and litigation, as well as to identify blind spots in European case law to build strategic litigation avenues.
EUROPEAN COURT OF HUMAN RIGHTS
MEHENNI (ADDA) v. SWITZERLAND ■ Application no. 40516/19
Preventive detention ordered on the basis of a psychiatric report revealing severe mental disorder, after the completion of the initial prison sentence, and with no causal link with the initial conviction: violation of Article 5 § 1 (a), violation of Article 4 § 2 of Protocol No. 7.
Detention of a person “of unsound mind” in a facility where no appropriate therapeutic treatment could be provided: violation of Article 5 § 1 (e).
MATTHEWS AND JOHNSON v. ROMANIA ■ Applications nos. 19124/21 and 20085/21
LAZĂR v. ROMANIA ■ Application no. 20183/21
No evidence showing a real risk of a sentence of life imprisonment without parole in the event of the applicant’s extradition to, and conviction in, the United States: manifestly ill-founded.
Lawfulness of applicants’ detention with a view to extradition and surrender: no violation of Article 5 § 1 (f).
Review of lawfulness of detention subsequent to extradition decisions: manifestly ill-founded (Article 5 § 4).
GEORGIA v. RUSSIA (IV) ■ Application no. 39611/18
Administrative practices implemented by Russia stemming from “borderisation” between breakaway regions (Abkhazia and South Ossetia) and the Georgian government-controlled territory resulting in multiple Convention violations.
Inadequate detention conditions and ill-treatment in detention in Abkhazia and South Ossetia, failure to conduct an effective investigation: violation of Article 3.
Unlawful arrest and detention, lack of basis for assuming that there is a system reflecting a judicial tradition compatible with the Convention in Abkhazia and South Ossetia: violation of Art 5 § 1.
Other complaints: violation of Article 2 and Article 8, violation of Articles 1 and 2 of Protocol No. 1 and of Article 2 of Protocol No. 4.
KHATYPOV AND OTHERS v. RUSSIA ■ Applications nos. 47699/19 and 25 others
Permanent video surveillance in prison cells, including by opposite-sex operators, in lavatory and shower rooms and in disciplinary cells: violation of Article 8.
VOLOSHIN AND OTHERS v. RUSSIA ■ Applications nos. 52019/19 and 52 others
VANYUTA AND OTHERS v. RUSSIA ■ Applications nos. 45337/19 and 54 others
SUNTSOV AND OTHERS v. RUSSIA ■ Applications nos. 58032/19 and 47 others
GORBUNOV AND OTHERS v. RUSSIA ■ Applications nos. 46924/19 and 49 others
Inadequate conditions of transport: violation of Article 3.
LEROY AND OTHERS v. FRANCE ■ Applications nos. 32439/19 and 2 others
Preventive remedy effective in principle for rectifying demeaning detention conditions following an industrial action in prison: applications partly inadmissible (non-exhaustion of domestic remedies).
Daily body searches by masked Special Security Teams for two to three weeks following an industrial action in prison: no violation of Article 3.
Prisoners confined to their cells 24 hours a day for some 20 days during an industrial action in prison; lack of access to the exercise yard or to fresh air and natural light; deprivation of contact with the outside world (phone calls, family visits, meetings with their lawyers): violation of Article 3.
Effectiveness of preventive remedy for rectifying poor detention conditions during industrial action in prison: no violation of Article 13.
GYENGE AND OTHERS v. HUNGARY ■ Applications nos. 62122/19 and 19 others
Life sentences with a possibility of release on parole only after long periods of time (between 26 years and five months and 48 years and one month): violation of Article 3.
EUROPEAN COURT OF HUMAN RIGHTS
MEHENNI (ADDA) v. SWITZERLAND ■ Application no. 40516/19 ■ Third Section Committee ■ 9 April 2024
Art 5 § 1 (a) ■ Review of the sentence based on an expert report revealing severe dissociative personality disorder after the completion of the initial prison term ■ Lack of causal link between the initial conviction and the preventive detention order made in the context of review proceedings.
Art 5 § 1 (e) ■ Lawfulness of the deprivation of liberty of a mentally ill person based on a sufficiently recent expert report ■ Detention of a mentally ill person in a facility where no appropriate therapeutic treatment could be provided.
Art 4 § 2 of Prot No. 7 ■ Diagnosis of mental disorder not constituting newly discovered fact affecting the nature of offences or extent of guilt.
Facts ■ The applicant was sentenced in 2011 to seven years’ imprisonment for several offences (including attempted murder, assault and bodily harm). Two psychiatric reports were carried out in 2015 and 2016 in the context of a request for early release. Both reports concluded that the applicant was suffering from mental health disorders and that there was a risk he would reoffend. In particular, the 2016 report concluded that the applicant suffered from a severe dissociative personality disorder and presented a high risk of reoffending. It also stressed that no medical treatment was known at the time that could improve his disorder.
On the basis of the 2016 report, the Prosecutor’s Office requested in 2017 a revision of the applicant’s initial judgment. After the applicant had completed his prison sentence, he was kept in prison pending the sentence revision proceedings.
In 2018, a district court granted the prosecutor’s request for review of the applicant’s penalty. On the basis of the 2016 expert report, it ordered the applicant’s preventive detention pursuant to Articles 65 § 2 and 64 § 1 (b) of the Criminal Code. The applicant appealed against the decision (including before the Federal Tribunal) to no avail.
Between 2018 and 2019, the applicant was detained in a pre-trial detention centre, where he received no medical treatment. Between 2019 and 2022 the applicant was detained in a high-security prison. In 2022, he was transferred to a medium-security prison. In both facilities he received irregular medical treatment.
Law ■ Article 5 § 1 (a)
Referring to the case of W.A. v. Switzerland (no. 38958/16, § 33, 2 November 2021), the Court recalled that a person’s preventive detention, ordered following a sentence revision procedure, is considered as having a “causal link” with the original conviction “only when the procedure in question consists of a genuine reopening of the procedure due to the appearance of new facts or new evidence making it possible to modify the original conviction” (§ 20).
In the present case, the detention order was issued more than seven years after the initial conviction and after the applicant had completed the sentence. Moreover, the court noted that the procedure did not have as a purpose to re-examine the applicant’s guilt or the offenses committed by the applicant.
The Court observed that the procedure appeared to have consisted of “imposing an additional penalty designed to protect society from offences for which the applicant had already been convicted, even though there was no new evidence to allow the applicant’s guilt to be re-examined” (§ 21).
Accordingly, the Court held that there was no causal link between the initial conviction in 2011 and the detention ordered in 2018 in the sentence revision proceedings.
Conclusion ■ Violation of Article 5 § 1 (a).
Law ■ Article 5 § 1 (e)
General principles: Rooman v. Belgium ([GC], no. 18052/11, §§ 190-211, 2019) ; Ilnseher v. Germany ([GC], nos 10211/12 and 27505/14, §§ 126-141, 2018.
(a) Whether the expert report was sufficiently recent
The Court noted that the detention order issued in 2018 was based on the 2016 expert report, issued about one and a half years earlier. The Court also noted that the report did not indicate that the applicant’s mental condition would improve, nor did the applicant report any improvement of his condition that would have required new expertise.
Therefore, the Court concluded that the report was recent enough to establish the applicant’s psychiatric disorder.
(b) Whether the applicant was held in an appropriate facility
The Court recalled that the detention in a prison of a person of “unsound mind” within the meaning of Article 5 § 1 (e) requires that the person is provided with adequate medical treatment.
The Court observed that the applicant received no medical treatment during his detention in a pre-trial detention centre (2018-2019), and that he received irregular medical treatment during his subsequent detentions in the high and medium-security prisons in which he was held.
The Court noted that the applicant’s preventive detention was ordered because he was found to suffer from a serious dissociative personality disorder, which had no known medical treatment at the time. The Court observed that the Swiss legislation does not mandate therapeutic measures with detention orders issued in such cases (Article 64 of the Criminal Code). The Court also implied that the experts’ findings, which revealed a lack of prospects for the applicant’s recovery, did not dispense the authorities from taking appropriate initiatives to provide him with an individualized treatment plan likely to help him regain his liberty (see Rooman v. Belgium [GC], §§ 2031, 31 January 2019).
Conclusion ■ Violation of Article 5 § 1 (e).
Law ■ Article 4 § 2 of Protocol No. 7
In the present case, the domestic courts found that the diagnosis of mental disorder constituted a newly discovered fact and, on the basis thereof, imposed a new penalty in the form of a detention order.
However, the Court noted that the procedure “was not based on any new evidence capable of affecting the nature of the offences committed by the applicant or the extent of his guilt, nor did it give rise to a fresh examination of the criminal charge” (§ 36).
Accordingly, the Court concluded that the reopening of the applicant’s case breached Article 4 § 2 of Protocol No. 7.
Conclusion ■ Violation of Article 4 § 2 of Protocol No. 7.
Article 41 ■ EUR 25,000 in respect of non-pecuniary damage, EUR 22,200 in respect of costs and expenses.
MATTHEWS AND JOHNSON v. ROMANIA ■ Applications nos. 19124/21 and 20085/21 ■ Fourth Section Chamber ■ 9 April 2024
LAZĂR v. ROMANIA ■ Application no. 20183/21 ■ Fourth Section Chamber ■ 9 April 2024
Art 5 § 1 (f) ■ Extradition ■ Detention of applicants with a view to their extradition and surrender ■ Period of detention under force majeure domestic provision during application of Court’s interim measure under Rule 39 preventing the applicants’ surrender, accompanied by procedural safeguards.
Art 3 ■ Extradition ■ No evidence showing a real risk of a sentence of life imprisonment without parole in the event of the applicants’ extradition to, and conviction in, the USA ■ First stage of the test set out in Sanchez-Sanchez v. the United Kingdom [GC] not fulfilled ■ Manifestly ill-founded.
Facts ■ The two cases concerned the applicants’ detention in view of their extradition to the United States (US). All three applicants were arrested on 19 November 2020 in connection with various crimes. In January 2021 the US authorities requested that the applicants be extradited for trial for i.a. racketeering, drugs and money-laundering offences. The Romanian High Court confirmed the applicants’ extradition in March 2021 and ordered their detention until their surrender.
All three applicants filed a complaint with the Court, who indicated interim measures stating that they should not be extradited for the duration of the proceedings before it. The applicants were released under judicial supervision.
The interim measures were lifted in December 2022 at the request of the Romanian Government following the Grand Chamber’s judgment Sanchez-Sanchez v. the United Kingdom (no. 22854/20, 2022), which overturned its case law on the matter (see Trabelsi v. Belgium, no. 140/10, 2014). Following the lifting of the interim measures, Romanian courts ordered the arrest and detention of the applicants with a view to enforcing the extradition order. MM Matthews and Johnson were still wanted by the police as of March 2023. Mr Lazăr was surrendered to the US authorities in January 2023.
Relying on Article 3, the applicants alleged, in particular, that their extradition to the US had/would put them at risk of life imprisonment without parole. Relying on Articles 5 §§ 1 and 4 They also complained that their detention pending extradition had been unlawful.
Law ■ Article 3
The Court recalled that the Sanchez-Sanchez test requires that the applicant must demonstrate (i) a real risk of receiving a life sentence without parole upon conviction, “without due consideration of all the relevant mitigating and aggravating factors”, and (ii) if such a risk is established, that there is no mechanism “allowing the domestic authorities to consider a prisoner’s progress towards rehabilitation or any other ground for release based on his behaviour or other relevant personal circumstances” in the requesting state (Matthews and Johnson, § 92).
The Court found that the applicants had not adduced sufficient evidence of a real risk of receiving a life sentence without parole upon conviction in the US.
The Court observed that all three applicants were charged by the Eastern District of Texas, primarily for drug-trafficking related offences. The Court took note of the US Department of Justice’s submission indicating that “in the past ten years less than 2% of all life-eligible drug cases tried in the Eastern District of Texas resulted in a life sentence” (§ 96). Noting the discrepancy “between the US Department of Justice and the applicants’ expert on what the relevant offence level would be if the applicants were to be convicted of the charges against them” (§ 98), the Court stressed that it is not its role “to address every conceivable permutation that could occur or every possible scenario that might arise in the sentencing process” (idem). It also argued that “the length of the applicants’ prison sentence might be affected by pre-trial factors, such as agreeing to cooperate with the US Government” (§ 99) as well as by the margin of discretion of the judge, and that the applicants will have the right to appeal against the sentence imposed.
Lastly, the Court noted that the applicants failed to submit examples of sentencing practices of the US trial courts in similar proceedings that would show that “defendants with similar records to themselves who were found guilty of similar conduct […] were sentenced to life imprisonment without parole” (§ 100).
Consequently, the Court found it unnecessary to proceed to the second stage of the test.
Conclusion ■ Inadmissible.
Law ■ Article 5 § 1 (f)
(a) Concerning the case of Matthews and Johnson v. Romania
The applicants alleged that their detention “with a view to extradition”, which went beyond the 180-days’ time-limit foreseen by Romanian law, had been unlawful. The Court focused its analysis on the detention period which followed the issuance of a decision ordering the applicants’ extradition and lasted until the applicants’ release and placement under judicial supervision (from 1 March to 19 November 2021 for the first applicant, from 5 March to 9 December 2021 for the second applicant).
The Court noted that the applicants’ detention until 10 June 2021, which was ordered “with a view to surrender”, had been consistent with the surrender date fixed (12 May 2021) and with the existing procedures. Accordingly, the Court declared this detention had been lawful, not arbitrary and “carried out ‘in good faith’ by the domestic authorities and [had been] ‘justified’ as regards the progress of the extradition proceedings” (§ 120).
As regards the applicants’ detention between 10 June 2021 and their release, which was prolonged after the Court had indicated interim measures ordering the suspension of the applicants’ extradition, the Court considered it fall within the scope of relevant domestic provisions concerning detention under force majeure. It noted in particular that the applicants’ overall detention had not been “unreasonably long or unjustified in the light of the authorities’ diligence and their interest in the progress of the procedure” (§ 128). It also stressed that “throughout this period and despite the absence of specific legal provisions, the domestic authorities and courts re-examined the lawfulness of the applicants’ detention, either of their own motion or at the applicants’ request [… and] applied less restrictive preventive measures […] namely house arrest and, later […] ordered the applicants’ release and placement under judicial supervision” (idem).
Conclusion ■ No violation of Article 5 § 1 (f).
(b) Concerning the case of Lazăr v. Romania
The Court divided the applicant’s continuous detention into two distinct periods. As regards the first period, which extended from the applicants’ detention (19 November 2020) until his release and placement under judicial supervision (8 June 2021), the Court focused on the detention “with a view to surrender” (1 March 2021-8 June 2021), i.e. following an extradition decision.
The Court acknowledged that the 15-days’ time-limit (extendable once) was only triggered once a surrender date had been fixed, which means that detention “with a view to surrender” prior to the fixation of a date. However, the Court stressed that “even where an applicant may have been kept in detention for an indeterminate period” (§ 97) a decisive element in its analysis is the existence of procedural safeguards. In this respect, the Court observed that “[a]side from the proceedings brought by the authorities of their own motion […], the applicant himself brought several sets of proceedings contesting the lawfulness of his continued detention” and that “those judicial proceedings, which demonstrated procedural safeguards of which the applicant had the benefit, were conducted with the requisite diligence and resulted in the applicant’s release and placement under judicial supervision on 8 June 2021” (§ 100).
As regards the second period of the applicant’s detention (from his rearrest in December 2022 until his surrender in January 2023), the Court noted that it took place after the relevant provision in domestic law had been amended and that no transitional provisions were in place that would to take into account the specific situation of the applicant, who had already been detained for the maximum time-limit.
The Court acknowledged that in view of the specificity of the situation, it had “duly taken into consideration the national authorities’ interpretation and application of the relevant provisions as they are, in the nature of things, particularly qualified to settle the issues arising in this connection” (§ 105). Consequently, stressing that the rearrest took place after the lifting of its interim measures which “are provisional in nature and, particularly once they are lifted in the course of the proceedings, they should not be a hindrance to the ultimate exercise of the States’ sovereign powers to extradite” (§ 108), the Court accepted the domestic courts’ interpretation that the applicant’s second detention was “in accordance with a procedure prescribed by law”. The Court further stressed that States are “under an obligation to cooperate in international criminal matters, which aims to prevent the creation of safe havens for those charged with the most serious criminal offences” (§ 109).
Conclusion ■ No violation of Article 5 § 1 (f).
Law ■ Article 5 § 4
As regards the complaints under Article 5 § 4, the applicants had been able to “take proceedings” to have the lawfulness of their detention reviewed by a court. In those proceedings the Romanian courts had, among other actions, verified compliance with surrender time-limits. The Court noted that the national courts had been particularly diligent, delivering decisions on lawfulness of detention within a few days or weeks at two levels of jurisdiction.
Conclusion ■ Inadmissible.
GEORGIA v. RUSSIA (IV) ■ Application no. 39611/18 ■ Second Section ■ 9 April 2024
Art 33 ■ Inter-State application ■ Administrative practices by Russia stemming from “borderisation” between breakaway regions of Abkhazia and South Ossetia and the Georgian government-controlled territory.
Art 3 ■ Inhuman and degrading treatment ■ Conditions of detention of ethnic Georgians and ill-treatment in detention in Abkhazia and South Ossetia ■ Failure to conduct an effective investigation.
Art 5 § 1 ■ Unlawful arrest and detention ■ Findings in Mamasakhlisi and Others v. Georgia and Russia concerning Abkhazia’s de facto authorities and courts applicable in respect of both regions.
Facts ■ The case concerned “administrative practices” (§ 19, see also Georgia v. Russia (I) ([GC], no. 13255/07, §§ 122-24, 2014) stemming from the “borderisation” of Abkhazia and South Ossetia. These two breakaway regions situated on Georgian territory were invaded in 2008 by Russia. Russia recognised these regions as independent States, established military bases, and started securing the administrative boundary line (“ABL”) between those breakaway regions and the territory controlled by the Georgian government and preventing people from crossing the ABL freely. Contrary to Georgia and the overwhelming majority of the international community, Russian and the de facto Abkhaz and South Ossetian authorities treat the ABL as an international border on the grounds that Russia has recognised the two breakaway entities as independent States.
The administrative practices targeted ethnic Georgians attempting to cross the ABLs or living adjacent to them on both sides. The applicant Government alleged there had been violation of Articles 2, 3, 5 § 1 and 8 of the Convention, as well as of Article 1 of Protocol No. 1, Article 1 of Protocol No. 2 and Article 2 of Protocol No. 4.
This summary focuses on violations of Articles 3 and 5 of the Convention (see also the Court’s registry legal summary covering other aspects of the judgment).
Law ■ Article 3
The applicant Government complained about ill-treatment in detention and/or inhuman detention conditions endured by ethnic Georgians detained by the Russian authorities or the de facto authorities of Abkhazia or South Ossetia for “illegally crossing” the ABL.
In addition to the material submitted by the applicant Government, the Court based its assessment on reports published by the Secretary General of the Council of Europe on the conflict in Georgia of 11 April 2017 (SG/Inf(2017)18) and of 11 April 2018 (SG/Inf(2018)15), the report of the United Nations High Commissioner for Human Rights on cooperation with Georgia of 12 July 2022, (A/HRC/51/64) and the report), and the report by Thomas Hammarberg and Magdalena Grono “Human Rights in Abkhazia Today”, all of which point to bad detention conditions (“to the extent that they may well cause severe health problems” according to the latter report) and occurrences of ill-treatment.
The Court observed that the number of occurrences reported (the applicant Government submitted a list of more than 2,800 victims of arrest and detention) and their interconnection reveals a “pattern or system” (§ 43). The apparent lack of effective investigation into the incidents complained of also enable them to establish “beyond reasonable doubt” that there has been “official tolerance” of these practices by the Russian authorities (idem).
The Russian authorities did not deny the applicant Government’s claims.
The Court accordingly found a violation of Article 3 under its substantive and procedural limbs.
Conclusion ■ Violation of Article 3.
Law ■ Article 5 § 1
The Court recalled that it has held that the de facto authorities of Abkhazia could not order “lawful arrest or detention” within the meaning of Article 5 § 1 (a) and (c) due to the lack of information on the legal and court systems in the breakaway regions, and the lack of “basis for assuming that there is a system reflecting a judicial tradition compatible with the Convention in the region” (§ 53, quoting Mamasakhlisi and Others v. Georgia and Russia, nos. 29999/04 and 41424/04, §§ 425-27, 2023).
Conclusion ■ Violation of Article 5 § 1.
Law ■ Other complaints: Article 2, Article 8, Articles 1 and 2 of Protocol No. 1, Article 2 of Protocol No. 4
The Court also found various violations of the Convention, including in relation to deaths and killing of Georgian residents who had tried to cross the ABL, as well as the immanent risk to life of numerous others who ultimately survived; restrictions on the freedom of movement; lack of access to homes, land, and other property, as well as cemeteries in the regions of the South Ossetia and Abkhazia; inability to be educated in one of the national languages (Georgian)..
Conclusion ■ Violation of Articles 2, Article 8, Articles 1 and 2 of Protocol No. 1, Article 2 of Protocol No. 4.
Article 41 ■ Just satisfaction reserved.
KHATYPOV AND OTHERS v. RUSSIA ■ Applications nos. 47699/19 and 25 others ■ First Section Committee ■ 11 April 2024
Art 8 ■ Permanent video surveillance ■ Opposite-sex operators ■ Lavatory and shower rooms ■ Disciplinary cells.
Facts ■ The 26 applicants, detained in pre-trial and post-conviction detention facilities, complained under Article 8 of permanent video surveillance in prison cells, by opposite-sex operators, including in lavatory and/or shower rooms, and disciplinary cells..
Law ■ Article 8
The Court recalled it’s finding of a violation of Article 8 in similar cases (Gorlov and Others v. Russia,nos. 27057/06 and 2 others, 2 July 2019), in which it held that permanent video surveillance of prisoners was to be regarded as a serious interference with their right to respect for privacy, and that the national law cannot be regarded as being sufficiently clear, precise or detailed to have afforded appropriate protection against arbitrary interference by the authorities with the prisoners’ rights. It saw no reason to depart from this conclusion and found a violation of Article 8 in respect of each applicant (without substantive examination).
Conclusion ■ Violation of Article 8
Law ■ Other complaints: Article 3, Article 5 § 3, Article 13
The Court also found violations in respect of some of the applicants under Article 3 (inadequate conditions of detention and transport, placement in metal cages in court rooms), Article 5 § 3 (excessive length of pre-trial detention), Article 13 (lack of effective remedy).
Conclusion ■ Violation of Articles 3, 5 § 3 and 13.
Article 41 ■ The finding of a violation constituted sufficient just satisfaction for any non‑pecuniary damage sustained by the applicants.
Some applicants, in respect of whom the Court found additional violations of the Convention (conditions of detention and transport, excessive length of pre-trial detention), were awarded just satisfaction varying between EUR 1,000 and 9,750
VOLOSHIN AND OTHERS v. RUSSIA ■ Applications nos. 52019/19 and 52 others ■ Second Section Committee ■ 18 April 2024
VANYUTA AND OTHERS v. RUSSIA ■ Applications nos. 45337/19 and 54 others ■ Second Section Committee ■ 18 April 2024
SUNTSOV AND OTHERS v. RUSSIA ■ Applications nos. 58032/19 and 47 others ■ Second Section Committee ■ 18 April 2024
GORBUNOV AND OTHERS v. RUSSIA ■ Applications nos. 46924/19 and 49 others ■ Second Section Committee ■ 18 April 2024
Art 3 ■ Inadequate conditions of transport
Facts ■ The 206 applicants complained under Article 3 of the inadequate conditions of detention during transport (by train, van, as well as conditions in transit cells), due to i.a. overcrowding, insufficient sleeping places, lack of fresh air, lack of access to natural light and insufficient lighting, inadequate temperature, lack of or restricted access to potable water, lack of or insufficient quantity of food, no or restricted access to toilets and lack of privacy in the toilets, lack of or poor quality of bedding and bed linen, passive smoking, transfer in individual “glass”-type cells.
Law ■ Article 3
The Court recalled it had found the structural problem of inadequate detention conditions during prisoners’ transfer in Russia (Tomov and Others v. Russia, nos. 18255/10 and 5 others, §182, 2019), and saw no reason to depart from its well-established case law. It found a violation of Articles 3 in respect of each applicant (without substantive analysis).
Conclusion ■ Violation of Article 3.
Law ■ Other complaints: Article 13, Article 3, Article 5 § 4, Article 8
The Court also found a violation of Article 13, in most of the cases, pertaining to the lack of effective domestic remedy for the complaints of inadequate conditions of transport, detention, and lack of medical care, as well as additional violations under Article 3 (confinement in a metal cage in a courtroom, poor conditions of detention, lack of adequate medical assistance), Article 5 § 4 (belated judicial review of detention), and Article 8 (permanent video surveillance in prison cells).
Conclusion ■ Violation of Articles 13, 3, 5 § 4 and 8.
Article 41 ■ The Court awarded a lump-sum of EUR 1,000 to most of the applicants, irrespective of the length or the number of transports complained of, and without “monetising” additional violation of Article 13 of the Convention.
Some applicants were awarded larger sums, varying between EUR 1,800 and 15,000 depending on the additional violations found in their respect (confinement in metal cages, conditions of detention, delays in judicial review of pre-trial detention, inadequate medical treatment, permanent video surveillance in prison cells).
LEROY AND OTHERS v. FRANCE ■ Applications nos. 32439/19 and 2 others ■ Fifth Section ■ 18 April 2024
Art 35 § 1 ■ Preventive remedy capable in principle to remedy the situation of poor conditions of detention following a prison industrial action ■ Urgent-application judge able to order measures that can be implemented quickly and have an immediate effect.
Art 3 and 13 ■ Involvement of masked external forces to reinforce prison security during an industrial action and pat-down searches not attaining the threshold of severity for inhuman or degrading treatment ■ Inhuman conditions of detention ■ Effectivity of a preventive legal remedy against inadequate conditions of detention.
Facts ■ From 5 to 20 March 2019, in response to a knife attack against two prison officers, industrial action was taken in the prison where the ten applicants were being held.
The applicants complained about the involvement of the Regional Intervention and Security Teams (“the ERIS”) in the day-to-day management of the prison during this period, and about the regular body searches to which the ERIS subjected them.
They further complained of their conditions of detention and about being deprived of contact with the outside world. Lastly, the applicants submitted that no effective preventive remedy had been available to them.
Law ■ Article 35 § 1 (Objection of non-exhaustion of domestic remedies)
(a) Preliminary remarks
The combined requirements of Articles 13 and 3 with respect to conditions of detention implied the coexistence of preventive and compensatory remedies, which had to be complementary.
(b) General considerations relating to the preventive and compensatory remedies
Under French law the two remedies were independent: preventive action by means of an urgent application for protection of a fundamental freedom (référé-liberté) was not subject to prior compensatory action by means of proceedings to engage State liability, nor did it exclude such action subsequently. In principle, access to a compensatory remedy for damage incurred as a result of detention in conditions breaching Article 3 did not exempt an applicant from having to pursue the effective preventive remedy available under the domestic law. The Court considered that this interplay between the remedies under Article 13, on the one hand, and the requirement under Article 35 § 1 to exhaust all domestic remedies, on the other, was compatible with the approach taken in its case-law, despite the short length of the detention period in issue.
Concerning the effectiveness of the two remedies, the Court drew attention to the following elements.
(i) With regard to the compensatory remedy, it reiterated that action to engage the State’s liability for demeaning conditions of detention was an available and adequate avenue of redress – that is, one that had reasonable prospects of success for applicants who had been exposed to such conditions. In principle, applicants were thus required, once they had been released or transferred to a different cell, to avail themselves of the compensatory remedy in question in order to comply with the rule of exhaustion of domestic remedies.
(ii) With regard to the preventive remedy, the Court reiterated its finding in J.M.B. and Others v. France to the effect that the limits on the powers of urgent-applications judges to issue orders prevented them from remedying breaches of prisoners’ rights under Article 3, where such breaches were the result of prison overcrowding. It had concluded that, in such a context, an urgent application for protection of a fundamental freedom did not amount to an effective preventive remedy. It therefore fell to the Court to rule for the first time on whether an application to the administrative courts provided an effective preventive remedy, on the assumption that, as in the present cases, the allegedly demeaning conditions of detention had not arisen in the context of prison overcrowding.
(c) Effectiveness of the preventive remedy
The Court pointed out that it had previously found that the system of urgent applications for protection of fundamental freedoms enabled urgent-applications judges, in the event of an established emergency, to rectify promptly any serious and manifestly unlawful breaches of such freedoms. Furthermore, the administrative courts adjudicated on the basis of standards aligned with those of the Court in such matters, taking into account the detainees’ situation of complete dependency on the prison service, their vulnerability and the material conditions of their detention.
In contrast to the case of J.M.B. and Others (no. 9671/15, 2020), which required the judge to order structural measures, in the present cases the urgent-applications judge had been required to address a situation linked to a single event of an exceptional and temporary nature. In exercising the power to give orders, the urgent-applications judge had been fully entitled to order urgent interim measures concerning, in particular, hygiene, exercise and family contacts, as well as body searches, and thus remedy the alleged breaches of Article 3. Lastly, the applicants had avenues available to them by which they could, if necessary, have sought enforcement of the measures ordered by that judge.
Having regard to these considerations, and given the scope of the judicial review exercised by urgent-applications judges on the facts and merits of applications lodged in circumstances such as those prevailing in the present cases, the Court held that the urgent application for protection of a fundamental freedom had had a reasonable chance of success. It further held that such an avenue could have resulted in an enforceable decision capable of promptly negating the effects of a breach of Article 3. The Court concluded that the urgent application for protection of a fundamental freedom had to be regarded, in the context of the matter at hand, as amounting in principle to an effective remedy.
(d) Exhaustion of remedies by the applicants concerned by the Government’s preliminary objection
The applications of seven of the applicants, lodged without any prior attempt to seek a preventive or compensatory remedy, and the application of an eighth applicant, who had not exhausted his action to engage the State’s liability, were declared inadmissible in so far as they concerned the material conditions of detention and the lack of contact with the outside world during the industrial action in question.
Law ■ Article 3 (regular body searches, substantive aspect)
The applicant Mr Lahreche had been frisked by masked ERIS officers each time he had left his cell while the prison had been gradually returning to normal operations. This practice had lasted two or three weeks, starting from late March, and had occurred when the applicant had been taken out for exercise, that is, at least once a day. The ERIS’s prolonged presence in the prison had been justified by the need to ensure durable security inside that establishment.
The Court considered that, in principle, the type of body search complained about by the applicant involved the detainee remaining clothed. In addition, the applicant had not provided any evidence supporting his allegations that the ERIS officers’ wearing of masks had not only caused him stress but also amounted in itself to a breach of his human dignity. The Court therefore held that the applicant’s situation, arising from the ERIS’s intervention during the industrial action in question and the regular body searches to which the ERIS had subjected him, did not reach the threshold of severity to be regarded as inhuman or degrading treatment.
Conclusion ■ No violation of Article 3.
Law ■ Article 3 (Deterioration of detention conditions during the industrial action, substantive aspect)
The deterioration in the applicants’ conditions of detention had been the result of a strike by prison staff following an attack on 5 March 2019. The competent authorities had thus been faced with an unforeseeable situation, requiring immediate action on their part.
Despite the relatively short length of the period in issue and the steps taken by the prison service to return promptly to normal operations, the Court held that the cumulative effect of (i) the round-the-clock confinement of the applicants Mr Leroy and Mr Lahreche in their cells for some twenty days; (ii) their lack of access to the exercise yard or to fresh air and natural light; and (iii) the deprivation of contact with the outside world, whether in the form of phone calls, family visits or meetings with their lawyers, had exposed the applicants to conditions of detention that had not met their basic needs, to an extent that they had to be regarded as demeaning (see Clasens v. Belgium).
In those circumstances the Court, while acknowledging the considerable efforts made by the competent authorities to address an exceptional situation and maintain security in the prison, found that the applicants’ conditions of detention had amounted to degrading treatment.
Conclusion ■ Violation of Article 3.
Law ■ Article 13
Given that a violation of Article 3 had been found with regard to the demeaning conditions of detention, the applicants Mr Leroy and Mr Lahreche had an arguable complaint under Article 13.
The Court noted that in the present cases it had accepted that an urgent application for protection of a fundamental freedom had in principle been an effective preventive remedy for rectifying the conditions of detention in the circumstances in issue. It therefore remained for the Court to examine whether that remedy had been effective in practice, in the specific case of the two applicants, taking into account the urgent-applications judge’s investigation and the times taken to deliver judgment.
First, the proceedings (before the administrative court and the Conseil d’État) had lasted a total of one month and seven days and had ended after the industrial action in issue had ceased. The sequence of events indicated that the applicants had been able to defend their interests before the judge, who had decided to hold hearings, delivered reasoned decisions and addressed all of their arguments in accordance with the specific procedure for urgent applications.
Second, given the circumstances of the present cases and the fact that a first-instance judgment had been delivered while the situation in issue had been ongoing, the Court held that the time taken to rule on the applicants’ appeal had not substantially affected the effectiveness of that appeal.
It followed that the applicants had had an effective remedy available to them.
Conclusion ■ No violation of Article 13.
Article 41 ■ EUR 2,000 to each of the applicants Mr Leroy and Mr Lahreche in respect of non‑pecuniary damage.
(See also Neshkov and Others v. Bulgaria, 36925/10 et al., 27 January 2015, Legal Summary; Clasens v. Belgium, 26564/16, 28 May 2019, Legal Summary; Ulemek v. Croatia, 21613/16, 31 October 2019, Legal Summary; J.M.B. and Others v. France, 9671/15 et al., 30 January 2020, Legal Summary)
© Council of Europe/European Court of Human Rights
GYENGE AND OTHERS v. HUNGARY ■ Applications nos. 62122/19 and 19 others ■ Fifth Section Committee ■ 18 April 2024
Art 3 ■ Life sentences with a possibility of release on parole only after a lengthy period of time.
Facts ■ The 20 applicants complained of their life sentences with a possibility of release on parole only after a lengthy period of time (between 26 years and five months and 48 years and one month)
Law ■ Article 3
The Court recalled it had already found a violation of Article 3 in its leading case regarding life sentences with a possibility of release on parole only after “inordinately long periods of time (§ 9, referring to Bancsók and László Magyar v. Hungary (no. 2), nos. 52374/15 and 53364/15, 2021).
Having examined all the material submitted to it, the Court saw no reason to depart from this conclusion. The fact that the applicants could only hope to have their progress towards release reviewed after they have served a very lengthy period of time was sufficient to conclude that these life sentences could not be regarded as reducible for the purposes of Article 3 of the Convention.
Conclusion ■ Violation of Article 3.
Article 41 ■ The finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage sustained by the applicants. The Court also awarded EUR 250 in respect of costs and expenses for each of the applicants.
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