The Court could provide more guidance in prisoner cases

When systematically reading the Court’s case-law, it becomes clear that poor conditions of detention remain one of the most dramatic human rights problems in contemporary Europe. The last decade, the Court has done a good job in interpreting Article 3 ECHR as to include a right for prisoners to be held in decent detention conditions. However this does not mean that there is no room for improvement. As I will illustrate by way of two recent cases, the Court could do a better job in developing clearer standards under Article 3 in its prisoners case-law. The way forward could be to adopt a rule-based rather than a threshold approach to these kind of cases.

A right to access a toilet in a private manner?

The case of Canali v. France concerns the complaints by a prisoner about his condition of detention between May and November 2006. He was held in the Charles III Prison in Nancy, which was eventually closed down in 2009 for being in a deplorable state. The Court adopts an “all things considered” approach to the detention conditions, which is so typical for its prisoners case-law under Article 3. First of all the Court finds that the limited space (together with another prisoner he shared a cell of 9 m² of which the space was further reduced by the toilet and the furniture) does not in itself violate Article 3. According to the Court, when the overcrowding does not in itself violate Article 3, it has to examine other factors such as the possibility to use toilets in a private manner, the ventilation, the access to natural light and air, the quality of the heating and respect for basic sanitary requirements. In the case at hand, the Court particularly takes issue with the lack of access to outdoor activity and the lack of access to a toilet in a private manner. The Court finds a violation of Article 3, based on the “cumulative effect” of these failures and the overcrowding, which must have caused feelings of despair and inferiority capable of humiliating and debasing the applicant.

Does this mean that Article 3 guarantees prisoners the right to access a toilet in a private manner? Probably not. Or maybe only when that prisoner suffers from other poor detention conditions. And even then the prison authorities could still choose to do something about the “cumulative” suffering by, say, providing more access to outdoor activity. Privacy in the toilet vs. outdoor activity: doesn’t really seem a fair trade-off, does it? These kind of trade-offs are symptomatic for the Court’s strict adherence to the threshold approach under Article 3: it only finds a violation when ill-treatment attains “a minimum level of severity”. In other words: it’s okay to treat prisoners bad, as long as you don’t treat them “really really bad”.

A right to have glasses?

Another bad example is the case of Komarova v. Ukraine. The discussion mainly focuses on the issue whether the applicant, who suffered from a declining eyesight as a result of hypertension, should have been given glasses or not. There were some evidentiary issues, specifically concerning the questions to what extent her eyesight had deteriorated and whether and when she had received glasses. However these issues were not decisive because, in the Court’s words:

“Even assuming that the applicant was not provided with spectacles in detention, there is no evidence that their absence affected the applicant’s everyday life to the extent that it was causing her considerable suffering.”

The Court does not provide any reference for this high “considerable suffering” threshold. The Court does distinguish the case from the earlier case of Slyusarev v. Russia, in which it did find that the state had violated Article 3 by failing to give the applicant glasses in a timely manner. A closer look at the latter judgment, however, reveals that no “considerable suffering” was required in that case. The Court rather held that:

“(…) even if having no glasses had no permanent effect on the applicant’s health, he must have suffered because of it. (…) Without glasses he was able to ‘attend to himself, orient himself and move around indoors’(…), but it is clear that he could not read or write normally, and, besides that, it must have created a lot of distress in his everyday life, and given rise to a feeling of insecurity and helplessness. The Court thus considers that the applicant’s situation, due to its duration, was serious enough to fall within the scope of Article 3 of the Convention.”

In her dissenting opinion in Komarova, Judge Power-Forde stresses the similarities between the situation of the applicants in both cases and therefore holds that the Court likewise should have found a violation of Article 3.

The Komarova judgment, just like Canali v. France, fails to provide clear guidance. Does Article 3 guarantee a right for a prisoner with a deteriorated eyesight to be given glasses? Exceptionally, yes, although the case-law is inconsistent as to the stringency of the Article 3 analysis. Again the case illustrates the Court’s myopic obsession with thresholds. This is hard to reconcile with the starting point of the Court’s analysis under Article 3 in prisoners cases, being that

“the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured.” (Komarova § 62)

Instead of asking whether the state treats a prisoner “really really bad” by denying him or her glasses, the question should thus be whether the lack of glasses exceeds the level of suffering inherent in detention. While one can argue about the former question, the latter can only be answered positively.

The way forward?

A way forward for the Court could be to abandon its myopic obsession with thresholds by developing clear rules that have to be complied with anyway. Such a rule could be that a prisoner must enjoy access to a toilet in a way that respects his or her privacy. Or a rule that a prisoner with a deteriorated eyesight should be given glasses. A failure to comply with these rules then automatically amounts to a violation of Article 3, without having to “quantify” the amount of suffering caused by these detention conditions, in themselves or “all things considered”.  In developing this kind of rules, the Court could draw inspiration from the work of the European Committee for the Prevention of Torture, to which it already refers regularly, or from the Committee of Ministers’ extensive European Prison Rules. The development of clear rules is also not entirely alien to the Court’s detention conditions case-law: the Court has for example held that holding a prisoner in a situation where he or she has less than 3 m² personal space per se violations Article 3 (e.g. Sulejmanovic v. Italy).

The advantages of a rule-based rather than a threshold approach are clear. On the one hand they provide more guidance to domestic authorities and judges, which ultimately benefits the situation of prisoners across Europe. On the other hand, such rules would also alleviate the Court’s work. Once the Court has developed a clear set of rules, for example by way of a Grand Chamber judgment, it can confine itself to simply examining whether these rules were complied with or not, rather than having to make a burdensome and somewhat arbitrary inquiry into the “quantity” of suffering. The threshold approach could then be reserved for cases in which it is impossible to develop clear rules, or for cases where it does make sense to look at the “cumulative effects” of detention conditions.