Lexploria

Information Note on the Court’s case-law 236

January 2020

J.M.B. and Others v. France - 9671/15, 9674/15, 9679/15 et al.

Judgment 30.1.2020 [Section V]

Article 13

Effective remedy

Preventive remedy ineffective in practice as a means of putting an end to inadequate conditions of detention linked to prison overcrowding: violation

Article 46

Article 46-2

Execution of judgment

General measures

Respondent State required to take general measures to permanently eliminate overcrowding in prisons and establish a preventive remedy that is effective in practice

Facts – The applicants were detained in six French prisons. Their conditions of detention varied in terms of the amount of personal space they were allocated and other aspects of their imprisonment. While they were in prison some of the applicants lodged administrative complaints with the competent administrative courts, either on an individual basis or through collective complaints lodged by the French section of International Prison Watch (“the OIP”). The administrative courts allowed the complaints in part and ordered measures to address certain aspects of the applicants’ conditions of detention, particularly with regard to hygiene standards. Some of the applicants also made use of a compensatory remedy, bringing actions for compensation against the State in the administrative courts, resulting in awards of damages.

The applicants complained mainly of inadequate conditions of detention and of the lack of an effective preventive remedy in that regard.

Law – Article 13: In its pilot judgments concerning overcrowding in prisons*, the Court had noted that the possibility for prisoners to obtain redress for their situation following a decision in their favour was insufficient unless there was an improvement in the situation with regard to overcrowding. In such circumstances the situation of one prisoner could only be improved to the detriment of other prisoners, and the capacity of the remedy to produce a preventive effect was not demonstrated.

Recently in France, applications to the administrative courts (in this instance an urgent application to protect a fundamental freedom) had highlighted the issue of overcrowding and insalubrious conditions in the prisons concerned and hence contributed quite rapidly to certain improvements in collective conditions of detention. The developments in the case-law had been brought about mainly by applications to the urgent-applications judge made by the OIP in its capacity as an observer of the prison system committed to defending prisoners’ rights. An urgent application to protect a fundamental freedom was also available to individual prisoners, and legal representation was not compulsory. The urgent-applications judges delivered their rulings promptly, taking account of the prisons legislation guaranteeing dignified conditions of detention and of the rights defined by the Convention and the principles established in the Court’s case-law. Prisoners’ conditions of detention were also assessed in the light of their position of vulnerability and complete dependence. Lastly, their rights under Articles 2 and 3 of the Convention constituted fundamental freedoms.

However, the issue to be addressed was whether the positive development in the administrative courts’ case-law actually made it possible to put an end to conditions of detention contrary to the Convention.

Firstly, the power of the urgent-applications judges to give orders was limited in scope. The judge was not empowered to require that work be carried out to eliminate the consequences of overcrowding in prisons or to order measures to reorganise the public justice system, but was concerned only with measures that could be implemented rapidly. Furthermore, it was not the task of the urgent-applications judge to monitor the implementation by the judicial authorities of criminal-policy measures.

Secondly, the role of the urgent-applications judge was conditional on the funding available to the prison authorities and the measures already taken by them. The prison authorities had no power to take decisions with regard to placements in detention, and prison governors were required to accept persons placed in detention even when the prison was overcrowded. The urgent-applications judge ordered transitional measures with little binding effect “pending a lasting solution”, which were not capable of putting a swift end to the applicants’ exposure to inhuman or degrading treatment. Lastly, the prison authorities could impede the judge’s power to issue orders by referring to the scale of the work to be carried out or the cost.

Such an approach was incompatible with the intangible nature of the right protected by Article 3 of the Convention. The Court had previously stressed that a high crime rate, a lack of financial resources, or other structural problems were not circumstances that attenuated the State’s liability and justified a failure to take measures to improve the situation in prisons. The State had a duty to organise its prison system in such a way that prisoners’ dignity was respected.

Thirdly, there were issues when it came to monitoring the implementation of the measures ordered by the urgent-applications judge, notwithstanding the existence of procedures clearly designed to ensure the effectiveness of the judicial decisions. While it was not for the urgent-applications judge per se to ensure judicial supervision of his or her orders, an application to the Report and Research Division of the Conseil d’État was intended to ensure effective follow-up of those orders. However, the time taken to implement the orders was incompatible with the requirement to afford prompt redress. Prisoners who had obtained a decision in their favour could not be expected to make multiple applications to ensure that their fundamental rights were recognised by the prison authorities.

Lastly, irrespective of the procedures for implementation, the Court noted that the measures implemented did not always produce the desired results. For instance, pest and rat control measures continued to be inadequate in certain prisons despite the efforts made, a fact which highlighted the full impact of the dilapidated state of some French prisons.

Ultimately, the measures ordered by the urgent-applications judge, in so far as they concerned overcrowded prisons, were difficult to implement in practice. The fact that prisons were overcrowded and dilapidated, especially in areas where there were few prisons and where transfers were not a realistic option, meant that the use of an urgent application to protect a fundamental freedom did not in practice enable persons in detention to secure the immediate and complete cessation of serious breaches of Article 3 of the Convention or to obtain a substantial improvement in their situation.

In these circumstances, the French prison authorities were not in a position to implement satisfactorily the measures ordered by the urgent-applications judge and, accordingly, to ensure that prisoners’ conditions of detention were in line with the Court’s case-law. While an urgent application to protect a fundamental freedom appeared to provide a solid legal framework for examining serious breaches of prisoners’ rights, it could not be regarded as the preventive remedy required by the Court. The same was true of urgent applications for appropriate measures, which encountered the same practical obstacles.

Conclusion : violation (unanimously).

The Court also held unanimously that there had been a violation of the substantive aspect of Article 3 on account of the demeaning conditions of detention resulting from the allocation of personal space ranging from less than 3 sq. m to 4 sq. m, which amounted to degrading treatment.

Article 46: The Court recommended to the respondent State that it should consider the adoption of general measures. Firstly, in order to ensure that prisoners’ conditions of detention were compatible with Article 3 of the Convention, the measures taken should include putting a permanent end to overcrowding in prisons by revising the method of calculating prison capacity and improving compliance with maximum occupancy standards. The 2018-2022 legislative programme contained criminal-policy and prison-policy provisions that were apt to have a positive impact by reducing the number of persons imprisoned. Furthermore, an effective preventive remedy should be put in place, which, together with the compensatory remedy, would enable prisoners to obtain redress for the situation of which they were victims and prevent the continuation of alleged violations.

Article 41: sums ranging between EUR 4,000 and EUR 25,000 to each applicant in respect of non‑pecuniary damage.

(See also Yengo v. France , 50494/12, 21 May 2015; Mironovas and Others v. Lithuania , 40828/12 et al., 8 December 2015, Information Note 191; and the Factsheets on Pilot judgments and Detention conditions and treatment of prisoners )

* See Ananyev and Others v. Russia , 42525/07 and 60800/08, 10 January 2012, Information Note 148; Torreggiani and Others v. Italy , 43517/09 et al., 8 January 2013, Information Note 159; Neshkov and Others v. Bulgaria , 36925/10 et al., 27 January 2015, Information Note 181; and Varga and Others v. Hungary , 14097/12 et al., 10 March 2015, Information Note 183.

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