Lexploria

Information Note on the Court’s case-law 245

November 2020

Barbotin v. France - 25338/16

Judgment 19.11.2020 [Section V]

Article 13

Effective remedy

Compensatory remedy ineffective, in view of the low award made in respect of inhuman conditions of detention and the fact that the detainee had to pay the expert’s fees, meaning that he owed money to the State: violation

Facts – The applicant received comp ensation from the domestic courts for the non-pecuniary damage which he had sustained on account of the demeaning conditions of his four months’ detention in a remand prison. However, the applicant complained of the ineffectiveness of the compensatory reme dy which he had used, in view of the inadequacy of the compensation obtained, that is to say the low amount of the award (500 euros) and the fact that he had also had to pay the fees (773 euros) charge by an expert for inspecting the cells which he had oc cupied.

The law – Article 13 read in conjunction with Article 3

(a) Admissibility : In view of the domestic court’s acknowledgement of the applicant’s demeaning conditions of detention in his cell, the latter lodged an arguable complaint under Article 13, w hich provision was therefore applicable.

(b) Merits : At the outset the Court reiterated that the action for damages lodged by the applicant with the administrative courts was a compensatory remedy which was available and adequate and presented reasonable prospects of success in respect of applicants having been held in demeaning conditions of detention. In principle, such an action required applicants, once they had been released or transferred to a different cell, to avail themselves of the compensatory r emedy in question in order to comply with the exhaustion-of-remedies rule laid down in Article 35 § 1 of the Convention.

In the present case, first of all, the administrative court and then the Conseil d’État adjudicated in accordance with the Court’s stan dards as regards conditions of detention, taking account of both the overcrowding in the remand prison and the problems arising from the poor overall state of the applicant’s cell. Those two courts engaged the State’s responsibility because the prison auth orities’ failure to fulfil their obligations under Article 3 had been objectively made out. Secondly, the administrative court’s judgment, which in its operative part awarded the applicant compensation in respect of non-pecuniary damage resulting from the violation of Article 3, upheld by the Conseil d’État , had been enforced and the applicant had indeed received compensation. Thus the general scheme of the compensatory remedy exercised before the administrative court, by providing the prospect of adequate reparation for the damage sustained as regards both the assessment of the amount of the compensation and the actual payment of the sums awarded, had met the requirements of Article 13.

Having regard to all the foregoing considerations and to the scope of t he judicial review conducted by the administrative courts on the facts of the case, the merits of the “arguable claim” under the Convention, and the entitlement to compensation for the demeaning conditions of detention, respectively, the applicant had bene fited from an appropriate remedy by which he had been able to secure an enforceable decision awarding him compensation for the damage which he had sustained. The compensatory remedy before the administrative court had therefore, as a matter of principle , b een effective in nature.

As regards the effectiveness of the remedy in the present case , it had to be assessed on the basis of the net total of the sums awarded by the domestic courts. Thus, the total of EUR 773 which the applicant had been ordered to pay in respects of costs and expenses had to be subtracted from the sum of EUR 500 awarded to him in compensation for the non-pecuniary damage. Therefore, even though the State’s responsibility had been engaged for making good the non-pecuniary damage which th e applicant had been found to have sustained, he had found himself owing the State EUR 273.

As regards, on the one hand, the compensation awarded to the applicant, the Conseil d’État , in view of the nature of its cassation review, had not questioned the amount of the award, which, although low, had not been sufficiently short of the standard levels of compensation in force at the material time before the administrative court. The Cour t noted the extreme paucity of the sum, which lay far below that currently awarded under the progressive scale adopted by decision of the Conseil d’État on 3 December 2018, only representing a minimal percentage of the amount which it could have awarded in similar circumstances. On the other hand, as regards the fact that the costs of the expert opinion had been charged to the applicant, the rules on procedural costs should not impose an excessive burden on a detainee whose legal action was well-founded, wh ich had been the situation in the present case. In that regard, subsequently to its decision in the instant case, the Conseil d’État had ruled that by law, where the unsuccessful party benefited from free legal laid, which had been the case of the applican t, and unless the judge decided to use the exceptional option of charging the costs to another party, the expert’s fees were payable by the State.

In the particular circumstances of the case, the outcome of the action lodged by the applicant placing him i n a situation, owing to the low amount of compensation awarded and the fact that the expert’s fees had been charged to him, of owing the State a sum of EUR 273, notwithstanding the proven fact that the applicant had suffered non-pecuniary damage on account of demeaning conditions of detention, had deprived the remedy of its effectiveness. The Court nonetheless took note of the administrative court’s case-law on the compensatory remedy had been evolving under a series of reforms which the respondent State ha d had to initiate in order to cope with prison overcrowding and to settle the many individual cases arising from that problem, thus giving effect to the subsidiarity principle which underpins the Convention system.

Conclusion : violation (unanimous).

Articl e 41: EUR 2,000 in respect of non-pecuniary damage.

(See also Ananyev and Others v. Russia , 42525/07 and 60800/08], 10 January 2012, Information Note 148 ; Stella and Others v. Italy (dec.), 49169/09, 1 6 September 2014, Information Note 177 ; Neshkov and Others v. Bulgaria , 36925/10 and others, 27 January 2015, Information Note 181 ; Yengo v. France , 50494/12 , 21 May 2015; Angel Dimitrov Atanasov and Aleksandar Atanasov Apostolov v. Bulgaria (dec.), 65540/16 and 22368/17, 27 June 2017, Information Note 209 ; Nikitin and Others v. Estonia, 23226/16 et al. , 29 January 2019; Ulemek v. Croatia , 21613/16, 31 October 2019, Information Note 233 ; J.M.B. and Others v. France , 9671/15 and others, 30 January 2020, Information Note 236 ; Sukachov v. Ukraine , 14057/17, 30 January 2020, Information Note 236 ; Shmelev and Others v. Russia (dec.), 41743/17, 17 March 2020, Information Note 239 , as well as factsheet Detention conditions and treatment of prisoners )

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