If you look up the word ‘degrading’ in the dictionary, chances are that you find a picture there of a person who cannot help shitting him- or herself. In the case of Lindström and Mässeli v. Finland, the Strasbourg Court however did not consider that state authorities necessarily inflict ‘degrading treatment’ when they are responsible for bringing a prisoner in such a situation. The case concerns prisoners who were put in ‘closed’ overalls they were unable to remove, which resulted in them shitting themselves because the prison guards did not bring them in time to a toilet. According to the Court, this did not amount to a violation of Article 3 ECHR. The Court did find a violation of Article 8, but as will be argued below, since the protection offered by this provision is lower, it cannot be a genuine alternative for the applicability of Article 3.
The applicants were serving a prison sentence for attempted manslaughter and for an aggravated drug offence, aggravated theft and firearms misdemeanour respectively. The first applicant was put in isolation for four days after an unsupervised meeting with his family. The second applicant was isolated for eight days on returning from prison leave. Both applicants were suspected of having smuggled drugs or other unlawful substances inside their bodies. In isolation, they had to wear overalls which covered them from feet to neck and which were ‘sealed’ by prison staff with plastic strips. As a result they were unable to remove the overalls by themselves. When they needed to use the toilet, they had to call the guards to escort them there and to remove the overalls. They were required to defecate in a specially constructed toilet bowl which permitted the checking of the excrement by the prison guards. According to the Government, the guards would normally reach the isolation cell in a couple of minutes, with a maximum delay of approximately ten minutes. Nonetheless both applicants – one of them even being put on laxatives, albeit with his consent – shat themselves in their overalls because they were not brought to the toilets in time.
The Court’s judgment
Endorsing the Government’s arguments, the Court all too easily dismissed the applicants’ Article 3 complaint:
“Although the applicants denied having harboured any intentions to smuggle drugs inside their bodies, the Court considers that the existence of such an observation system can be acceptable as such. Maintaining order and security in prisons as well as guaranteeing the prisoners’ well‑being can be proper grounds for introducing the system of closed overalls to be used while prisoners are in isolation. Other means of observation, such as cameras or on the spot surveillance, may not appear to be sufficient. Moreover, the Court notes that ultimately these measures were designed for the protection of prisoners’ health and that their intention as such is not to humiliate. As the domestic courts noted, it was not intended that prisoners defecate in the overalls but defecation was to take place in separate, supervised toilets.”
The Court did acknowledge that “this practice might be assessed differently if it led, in concrete circumstances, to situations which are contrary to Article 3 of the Convention.” While the guards knowingly delaying their response to the applicants’ calls to use the toilet, the lack of an appropriate possibility to wash whenever necessary or skin damage caused by the overalls would have given rise to issues under Article 3, the Court did not consider the applicants’ allegations in this respect proven. In the absence of evidence of possibly humiliating elements, the Court considered
“that in a situation where there were convincing security needs, the practice of using closed overalls during the relatively short period of isolation cannot, in itself, reach the threshold of Article 3 of the Convention.”
Therefore the Court did not find a violation of Article 3 ECHR.
The Court continued to examine the issue under Article 8 ECHR, holding that the use of ‘closed’ overalls amounted to an interference with the applicants’ right to respect for their private life, since the concept of private life also comprises the respect for human dignity. The Court found a violation of this provision, since the interference had not been ‘in accordance with the law’. While domestic law did provide a legal basis for isolating a prisoner when he or she is suspected of having concealed drugs inside his or her body, it did not contain any mention of the modalities of such isolation, including the use of closed overalls. Having regard to this conclusion, the Court did not consider it necessary to review compliance with the other requirements of Article 8 § 2.
The Court’s judgment is problematic in a number of respects. First of all, it is unclear how the Court could overlook the inherent degradingness of the applicants’ treatment. In this respect, one can only agree with Judges Bianku and Vehabovic that
“contrary to the conclusion reached by the Chamber in this case, if a person is placed in isolation, even for a fairly short period of time, and is obliged to wear overalls in which he defecates as a result of an allegedly slow response by the prison guards, this does reach the minimum the threshold under Article 3 of the Convention and must be regarded as degrading treatment.”
Secondly, the Court’s failure to thoroughly examine the case under Article 3 is hard to reconcile with the Court’s practice of developing clear safeguards on the use of restraint measures in prison settings under this provision. The starting point of the Court’s analysis in prisoners cases traditionally is that the manner and method of execution of a deprivation of liberty may not subject an individual to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (e.g. Ilaşcu and Others v. Moldova and Russia, § 428). As a result, the Court has always been very wary with respect to the use of disciplinary or safety measures that one way or another further restrict prisoners’ freedom of movement or physical integrity, requiring strong safeguards against abuse to be in place. In the case at hand, however, the Court only required the existence of unspecified ‘convincing security needs’ and the absence of further humiliating elements in order for a restraint measure to be compatible with the requirements of Article 3 ECHR.
Albeit more severe measures, one could compare the use of ‘closed’ overalls with the use of restraining beds or belts, which according to the Court’s case law are only acceptable in very narrowly defined circumstances (e.g. Bureš v. Czech Republic and Julin v. Estonia). Such measures are only acceptable as a matter of last resort, when other less restrictive measures are not possible (Bureš, § 97), in order to avoid self-injury or serious danger to other persons or prison security (Julin, § 127), on condition that they are proportionate to that aim (Bureš, § 96), necessary under the circumstances and not excessive in length (Bureš, § 86), accompanied by periodical checks of the prisoner’s welfare (Bureš, § 86) and provided that the conditions and procedure for the use of these measures are defined with the utmost precision in the domestic law (Julin, § 125). Similar safeguards could have been developed for the use of ‘closed’ overalls in the case at hand. In the absence of such safeguards, prisoners however risk to be subjected to disciplinary or safety measures in an arbitrary fashion, entailing the risk of abuse of power by prison authorities. Moreover, particular caution is required in the case at hand, since it concerns a preventive rather than a disciplinary measure. The Court should at least have required prison authorities to have some probable cause to suspect a prisoner of having drugs in his or her body before allowing them to use ‘closed’ overalls, rather than using it as a seemingly arbitrary safety measure. Indeed, as stressed by the dissenters there was no proof whatsoever that any of the applicants was involved in drug trafficking in prison.
Thirdly, scrutinizing prison security measures under Article 8 is not a genuine alternative for applying Article 3. As an absolute right, Article 3 contains a strong presumption against the use of restraint measures in prison contexts. Such measures will generally only be acceptable insofar as they are made strictly necessary by the prisoner’s conduct. Article 8 on the other hand is more permissive, since it only requires a ‘fair balance’ to be struck between the right to respect for private life and the general interest of maintaining prison security. Since this test is more lenient, the risk of sacrificing prisoners’ rights is inherently higher than under Article 3. While Article 8’s ‘in accordance with the law’ test does allow for a control of the domestic legality of such security measures (both formal legality and ‘quality of the law’), it is unlikely that, in the absence of a violation of Article 3, the Court would have found that the use of the ‘closed’ overalls in the case at hand was not ‘necessary in a democratic society’. In other words, had a legal basis of sufficient quality been in place, subjecting the applicants to ‘closed’ overalls would likely have passed the Article 8 test.
Fourthly, in any event it was wholly unnecessary to examine the domestic legality of the security measures via the Article 8 detour. Dissenting judges Bianku and Vehabovic stressed that this legality assessment properly belonged to the Court’s Article 3 analysis, quoting the landmark Article 3 judgment of Ilaşcu and Others v. Moldova and Russia:
“All those restrictions, which have no legal basis and are imposed at the authorities’ discretion, are incompatible with a prison regime in a democratic society. They played their part in increasing the applicants’ distress and mental suffering”
Indeed, there is no reason why the Court could not have taken the lack of domestic legality into account under Article 3. It is exactly under Article 3, rather than under the more permissive Article 8, that states are required to regulate security and disciplinary measures in prisons, clearly delineating the limited circumstances under which such measures may be applied as well as their modalities of application, in order to avoid as much as possible any risk of abuse of power by prison authorities (see for example the above-mentioned Julin v. Estonia judgment). Disappointingly, by failing to require such strong safeguards in the case at hand, the Court risks opening the door to arbitrariness in prison contexts.
 There was some disagreement between the applicants and the State as regards the factual circumstances. The State for example claimed that the second applicant shat himself deliberately in order to protest against the use of the overalls, which was denied by the applicant concerned. Both applicants on the other hand claimed that they were not allowed to wash after shitting themselves and that the overalls caused them skin damage, which was denied by the Government.