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
S.P. AND OTHERS v. RUSSIA ■ Applications nos. 36463/11 and 10 others
Segregation, humiliation and abuse of prisoners by fellow inmates on account of inferior status in informal prisoner hierarchy tolerated by prison staff; lack of systemic State action: violation of Article 3.
HORION v. BELGIUM ■ Application no. 37928/20
Impossibility for a life-sentenced prisoner to be admitted to a forensic psychiatric unit (as an intermediate stage before his release), even though his detention in prison is no longer considered appropriate by psychiatric experts and domestic courts; irreducible life sentence: violation of Article 3.
ÇAYLI AND SERLİ v. TÜRKİYE■ Application nos. 49535/18 and 10419/20
Monitoring and interception of prisoners’ correspondence with their lawyers by the prison authorities: violation of Article 8.
BOJAR v. POLAND ■ Application no. 11148/18
Strip searches of a detainee lacking justification and impossibility to appeal to the court against the dismissal of the complaint regarding the strip searches in the absence of any formal decision or register of searches: violation of Article 8.
EUROPEAN COURT OF HUMAN RIGHTS
S.P. AND OTHERS v. RUSSIA ■ Applications nos. 36463/11 and 10 others ■ Third Section ■ 2 May 2023
Art 3 (substantive) ■ Inhuman and degrading treatment ■ Segregation, humiliation and abuse of prisoners by fellow inmates on account of inferior status in informal prisoner hierarchy tolerated by prison staff ■ Applicants’ stigmatisation, assignment to menial labour and denial of basic needs, enforced by threats of violence and occasional physical and sexual violence and resulting in constant fear over years ■ Failure of domestic authorities to take individual protective measures • Lack of State action to address systemic problem
Art 13 (+ Art 3) ■ Lack of effective remedy
Facts ■ The applicants were all serving prisoners in Russian correctional facilities who complained of being subjected to inhuman and degrading treatment on account of their subordinate status as “outcast” prisoners in an unofficial prisoner hierarchy. They lodged complaints with the domestic authorities about the treatment, all of which were summarily rejected.
Law ■ Article 3
Preliminary issue
As the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022, the date on which the Russian Federation ceased to be a party to the Convention, the Court had jurisdiction to examine the application.
(a) Establishment of the facts
The informal nature of the prisoner hierarchy, relating as it did to embedded patterns of behaviour, namely abuse and ritualistic and symbolically degrading treatment meted out to “outcast” prisoners by other prisoners, made it an inherently difficult subject for the Court’s examination. The Court had therefore to consider the applicants’ complaints taking into account all the information from different sources provided by them, including official reports and academic research, in order to establish the veracity of their allegations.
The applicants – held in far-off and distant places at different times – had submitted similar accounts of the abuse they had faced, including detailed accounts of the events that led to their classification as “outcast” prisoners. They had also provided evidence to support their claims. Moreover, academic research and the relevant report of the European Committee for the Prevention of Torture (CPT) lent credence to their submissions. Further, as transpired from various reports of public monitoring entities, there were also sufficiently strong indications that the domestic authorities had been aware of the informal hierarchy. In particular, it was clear that both other prisoners and prison staff had been aware of the applicants’ “outcast” status with some of them being placed in special units exclusively for “outcast” prisoners. In addition, the Government had not engaged with the applicants’ detailed submissions and had not provided an alternative account of events. Therefore, the Court found it established that the applicants had been subjected to the treatment which they complained of, on the part of fellow prisoners and on account of their status within the informal prisoner hierarchy.
(b) Whether the treatment to which the applicants were subjected reaches the threshold of Article 3
While not every applicant had been subjected to physical violence in connection with their status as “outcast” prisoners, two had suffered physical attacks, while another had been forced to provide sexual services to a member of the “criminal elite”. Further, living in a state of mental anguish and fear of ill-treatment had been an integral part of the applicants’ experience as “outcast” prisoners.
A further indication of degrading treatment had manifested itself in the arbitrary restrictions and deprivations the applicants had endured in their daily life. They were allocated the least comfortable places in the dormitory and canteen and prohibited from using any other areas under threat of punishment. Their access to prison resources, including showers and medical care, had been limited or excluded and they were also forbidden from coming into proximity, let alone touching, other prisoners under threat that person would become “contaminated”. Denial of human contact was a dehumanising practice that reinforced the idea that certain people are inferior and not worthy of equal treatment and respect. The resulting social isolation and marginalisation of the “outcast” applicants must have caused serious psychological consequences. In addition, allocation of work duties on the basis of status, with “outcast” applicants being forced to perform jobs and occupations deemed “unclean” or otherwise unacceptable for the other prisoners (such as cleaning latrines or shower cubicles), had further debased them and perpetuated the feelings of inferiority. The status-based allocation of work served to perpetuate the separation – on physical and symbolic levels – of the “outcast” applicants and their sense of inferiority and powerlessness would have been intensified due to the permanence of the stigma attached to their low status. The enduring nature of the stigma removed any prospect of improvement for the “outcast” applicants, even after a lengthy period of detention or upon transfer to another institution.
In the light of the above, the Court found that the applicants’ stigmatisation and physical and social segregation, coupled with their assignment to menial labour and denial of basic needs such as bedding, hygiene and medical care, enforced by threats of violence and also occasional physical and sexual violence, had led them to endure mental anxiety and physical suffering that must have exceeded the unavoidable level of suffering inherent in detention, even if not all applicants had been subjected to physical or sexual violence. That situation which the applicants endured for years on account of their placement in the group of “outcast” prisoners had amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention.
(c) State’s obligation to protect the applicants from ill-treatment
The phenomenon of an informal prisoner hierarchy had been a widespread and well-known problem in Russian penal facilities. Prison staff and the authorities in general ought to have been aware both of its existence and the applicants’ status within it. It had therefore been impossible to ignore the risks of inhuman and degrading treatment which the applicants had confronted on a daily basis throughout the term of their imprisonment. Therefore, it fell to the Government to explain what measures had been taken to address the applicants’ vulnerability.
The prison staff had not deployed any specific and prompt security or surveillance measures to prevent the informal code of conduct from being enforced on the applicants, considered how they could be protected from abuse and harassment, or put in place a proper classification policy which would have included screening for the risk of victimisation and abusiveness. Furthermore, there was no indication that prison staff had had a standardised policy of punishments for inmates who had perpetrated violence seeking to enforce the informal code of conduct on others. The absence of such a policy showed that prison violence was not taken sufficiently seriously and that the prison staff had been prepared to allow detainees to act with impunity to the detriment of the rights of other inmates. It further appeared that the domestic authorities did not have an action plan to address the problem at a structural level and had been unable to indicate any effective domestic remedies capable of offering redress to the applicants affected by it.
Bearing in mind the structural nature of the problem, individual measures would not have addressed the core issue at the heart of the applicants’ grievances. Even if the complaints by the “outcast” applicants had been properly investigated and specific incidents of violence or ill-treatment had been sanctioned, this would not have changed the power structures underlying the informal prisoner hierarchy or the applicants’ subordinate place in it. A transfer to another facility would have done nothing to remove the stigma attached to the “outcast” status linked to the applicants for as long as they remained in facilities governed by an informal code of conduct. Similarly, the possibility of placement in a “safe place” was, under domestic law, a temporary measure.
Some applicants sought to improve their situation by lodging complaints with the regional departments of the Federal Service for the Execution of Sentences, the Ombudsman and even the Federal Security Service but all had been summarily rejected, without hearing the complainants or collecting additional evidence. The Ombudsman had conceded that such complaints had lacked any prospect of success. As regards systemic remedies, it was inexplicable that the Conceptual Frameworks for the Development of the Penal System had not even identified the informal prisoner hierarchy as a problem calling for the attention of the prison authorities. Accordingly, the domestic authorities had taken no steps to protect the applicants from inhuman and degrading treatment associated with their status as “outcast” prisoners. Moreover, the Russian authorities currently had no effective mechanisms to improve the applicants’ individual situation or an action plan for dealing with the issue in a comprehensive manner. Therefore, the Court dismissed the non-exhaustion objection raised by the Government due to lack of the effective remedies available to the applicants and the fact the authorities had taken no action to address the problem in a systematic way.
In sum, the applicants, who belonged to a particularly vulnerable category of “outcast” prisoners, had been subjected to segregation, humiliating practices and abuse in their daily life while in detention, and had been at a heightened risk of inter-prisoner violence. Being subjected to such treatment, for years, had amounted to inhuman and degrading treatment. The State authorities were aware, or ought to have been aware, of the applicants’ vulnerable situation which moreover was a part of a systemic and wide-spread pattern. However, the domestic authorities had done nothing to acknowledge, let alone address, that problem and had taken no general or individual measures to ensure the applicants’ safety and well-being. In view of the extent of the problem, the Russian authorities’ failure to take action could be seen, in the present case, as a form of complicity in the abuses inflicted upon the prisoners under their protection.
Conclusion ■ Violation of Article 3 (unanimously). The Court also found a violation of Article 13, taken in conjunction with Article 3, in respect of the applicants who raised that complaint..
Article 41 ■ EUR 20,000 (or smaller amount as was claimed) awarded to each applicant in respect of non-pecuniary damage.
(See also Premininy v. Russia, 44973/04, 10 February 2011, Legal Summary; Ananyev and Others v. Russia, 42525/07 and 60800/08, 10 January 2012, Legal Summary).
© Council of Europe/European Court of Human Rights
HORION v. BELGIUM ■ Application no. 37928/20 ■ Second Section ■ 9 May 2023
Article 3 (substantive) ■ Impossibility for the applicant to be admitted to a forensic psychiatric unit, even though his detention in prison is no longer considered appropriate by the domestic authorities ■ Admission to a forensic psychiatric unit considered by the domestic courts to be an essential stage in the reintegration into society ■ No realistic prospect of release
Facts ■ The applicant has been detained since 1979 and was sentenced to life imprisonment in 1981 for the murder of five people in connection with a robbery. He complained that his life sentence was irreducible de facto.
From 1993 onwards, the applicant made numerous applications for conditional release, limited detention and electronic surveillance. They were all rejected by the competent authorities, on the grounds that the rehabilitation plan was insufficient to prevent further serious offences.
In 2018, a panel of experts appointed by a post-sentencing court found that extending the applicant’s detention in prison was not appropriate either in terms of public safety or with a view to his rehabilitation and reintegration into society. However, in consideration of the moderate risk of reoffending upon release, the panel proposed the applicant to be admitted to a forensic psychiatric unit as a transition between prison and society. Domestic courts followed the expert’s reasoning and refused to release the applicant before he spends a period in the psychiatric unit.
However, the psychiatric units refused the applicant’s applications for admission on the grounds that they receive State subsidies only for persons in compulsory confinement and not for convicted persons.
The applicant argued that in his specific situation (impossibility of being released until he is admitted to a forensic psychiatric unit, impossibility of being admitted to such a unit because of his status of convict) rendered his life sentence irreducible de facto.
Law ■ Article 3
The Court observed that following the 2018 psychiatric experts’ report finding that prolonging the applicant’s imprisonment was no longer suitable and recommending his admission to a forensic psychiatric unit as a transitional phase before potential release, the post-sentencing court rejected all applications for sentence adjustment submitted by the applicant (such as limited detention or electronic monitoring), highlighting the crucial importance of the applicant’s admission to a forensic psychiatric unit for his reintegration into society.
The Court also took note that the applicant’s status as a convicted person prevented him from being admitted to all the medium-security forensic psychiatry units in the Flemish Community he contacted as those units were for “persons in compulsory confinement” only. The Government acknowledged that the applicant’s admission was rendered “impossible in practice” for financial reasons (§71) as these units receive State funding for the admission of “persons in compulsory confinement” only.
The applicant was left in a deadlock: while the competent authorities believed his detention was no longer suitable, he could not be admitted to a forensic psychiatric unit where he could prepare for his release, and no intermediate solution appeared to be available to him.
While acknowledging the unique circumstances of the applicant’s situation described by the Government (i.e. that he has been detained since 1979 and has spent most of his life in prison), the ECtHR nevertheless pointed to the fact that for over five years, the applicant’s concern remained unresolved, and the authorities failed to provide any guidance on potential steps the applicant could take to remedy the situation.
The Court recalled that the formal possibility for lifers to apply for release after a given period of time was insufficient to meet the requirements of Article 3, which guarantees an absolute right, and recalled that the prospect of release offered must be realistic (see also the 25th General Report of the CPT on the situation of prisoners serving life sentences (CPT/Inf (2016) quoted in §52).
Consequently, the Court concluded that the applicant’s extended inability to secure a place in a forensic psychiatric unit, despite the acknowledgement by domestic authorities that his continued imprisonment was inappropriate, created a situation where he had no realistic chance of being released, which made his sentence irreducible de facto
Conclusion ■ Violation of Article 3.
ÇAYLI AND SERLİ v. TÜRKİYE ■ Application nos. 49535/18 and 10419/20 ■ Second Section Committee ■ 9 May 2023
Art 8 ■ Respect for correspondence ■ Monitoring and interception of correspondence between prisoners and their lawyers ■ Privileged regime for correspondence between prisoners and lawyers ■ Limitation permissible only in exceptional circumstances and with appropriate safeguards ■ Interference not necessary in a democratic society
Facts ■ The applicants were detained pending trial on charges of membership of the organisation described by the Turkish authorities as FETÖ/PDY (the “Fetullahist Terror Organisation/Parallel State Structure”). Both complained that their correspondence with their lawyers had been monitored by the prison administration.
The first applicant complained that a letter sent by his lawyer was delivered to him only after it had been opened and inspected by the prison authorities.
The second applicant complained that the prison authorities confiscated the annexes of a letter sent by his lawyer containing a judgment, on the grounds that the judgment in question had not been issued in respect of the applicant and that the document could not be considered as a letter within the meaning of domestic law.
Both applicants initiated court proceedings on the domestic level and subsequently applied to the Constitutional Court, but their complaints were declared inadmissible.
Law ■ Article 8
The Court stressed from the outset that the lawyer-client relationship is of a privileged nature and that the confidentiality between clients and their lawyers must be respected (see see Campbell v. the United Kingdom, no. 13590/88, 25 March 1992, §§ 32-54; Ekinci and Akalın v. Türkiye, no. 77097/01, § 47, 30 January 2007).
The Court dismissed the Government’s objection in respect of the first applicant that there had been no indication on the envelope of the letter that its sender was his lawyer. The Court accepted the applicant’s argument that the initials on the envelope were those of his lawyer, who is known to the prison authorities as he had previously visited him in prison. With regard to the second applicant, the fact that the attachment to the letter sent to the applicant by his lawyer was confiscated is not disputed by the parties.
While acknowledging that the interference in question pursued the legitimate aims of preventing disorder and crime, the Court reiterated that the limitation of the right to confidentiality of correspondence between detainees and their lawyers can be limited “only in exceptional circumstances and must be surrounded by adequate and effective safeguards against abuse […] such as entrusting any necessary control of correspondence to independent judges and not to the prison authorities themselves” (§25).
Finding that the monitoring and interception of correspondence was not carried out in exceptional circumstances and and had not been surrounded by the necessary safeguards, the Court concluded that the interference was not necessary in a democratic society.
Conclusion ■ Violation of Article 8
Article 41 ■ EUR 300 to each of the applicants in respect of non-pecuniary damage.
BOJAR v. POLAND ■ Application no. 60846/19 ■ First Section Committee ■ 11 May 2023
Art 8 ■ Privacy ■ Strip searches ■ Lack of justification ■ Lack of effective remedy ■ Impossibility to appeal to the court against the dismissal of a complaint by the prison administration in the absence of any formal decision from the prison administration or register of searches
Facts ■ The applicant had been serving a sentence of twenty-five years’ imprisonment since 2002. Since 2014, he had been working for a company located outside the prison.
On several instances, he was subjected to strip searches, including in his cell during a general prison check and after finishing his work shifts. His complaints to the Director of the Regional Prison Service Inspectorate were found to be unfounded as the applicant had been subjected to a so-called “enhanced supervision programme” in view of suspicions that he had been involved in drug dealing. The applicant lodged an appeal with a Regional Court, who refused to examine it on the grounds that “since the Director had not issued any decision, there had been no right of appeal to a court” (§4).
The applicant also complained that on one occasion, he was searched in the presence of a man who was not wearing a uniform and who was unknown to him.
Last, in response to a latter complaint filed by the applicant to the Director of the Regional Prison Service Inspectorate, the latter informed him that it had not been possible to confirm whether the strip searches had taken place, because there was no official register of strip searches.
The applicant complained under Article 8 that these searches breached his right to respect for his private life, and under Article 13 that he lacked an effective remedy in this respect.
Law ■ Article 8
While acknowledging the legality of the searches carried out, and the fact that they pursued the legitimate aim of “the prevention of disorder or crime”, the Court noted that the Government “have provided no evidence justifying the authorities’ suspicion that the applicant might have been involved in drug dealing” (§15) and that no justification was provided to the applicant either.
Furthermore, the Court stressed that the fact that the Regional court could not examine the applicant’s complaint because there had been no official decision issued by the prison authorities, and that the authorities wre not able to confirm that a strip search had been carried out in the absence of a register of searches, prevented it “from assessing whether the requirement of a sufficient justification for strip searches at the domestic level had been complied with” (§17, see, Dejnek v. Poland, no. 9635/13, § 75, 1 June 2017, and Nowak v. Poland, no. 60906/16, § 37, 13 October 2022).
The Court therefore concluded that the authorities failed to provide sufficient and relevant reasons justifying the strip searching of the applicant, in breach of Article 8.
Considering that “at the heart of the applicant’s complaint under Article 13 of the Convention lie issues that have been examined and have resulted in the finding of a violation of Article 8” (§20), the Court considered that no separate issue arises under Article 13 of the Convention and made no separate finding under this provision.
Conclusion ■ Violation of Article 8
Article 41 ■ EUR 4,000 in respect of non-pecuniary damage; EUR 320 in respect of costs and expenses.
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Funded by the European Union and the Robert Carr Fund. Views and opinions expressed are however those of the authors only and do not necessarily reflect those of the European Union or the Robert Carr Fund. The European Union and the Robert Carr Fund cannot be held responsible for them
