April 06, 2026
By Professor Mary Rogan
Prisons provide a special setting for the protections contained in Article 3 of the European Convention on Human Rights. It is well established that when liberty is deprived, the right to protection from torture and inhuman or degrading treatment or punishment is at particular risk (see further here, here, here and here). The nature of the power relations when liberty is deprived, the particular vulnerabilities which detainees may display, and the distance from public view all give rise to concerns about the protections for detained people. These characteristics of prison mean that recent efforts to dilute, change, or restrict the application of Article 3 in the setting of imprisonment are of extreme concern to all those interested in the protection of rights and the promotion of dignity both in prison and more generally.
A great deal of the effort to constrain the protections of Article 3 is centred on what is framed as the constraints placed on expulsion, extradition, or execution of European Arrest Warrants (EAWs) by decisions which find prison conditions in receiving countries to be not in compliance with Article 3. However, as Mavronicola makes clear, neither the Joint Statement to the Conference of Ministers of Justice of the Council of Europe by 27 countries, including my own, Ireland nor the Steering Committee for Human Rights (CCDH) necessarily limit efforts to alter the contents of the protections of Article 3 to the setting of migration. The implications of any reduction in the protections contained within Article 3 for domestic prison systems are, as yet, unclear. However, Government criticism of the requirements of the Convention within domestic prisons is far from unknown, as the prisoner voting debate in the United Kingdom makes clear. We must therefore be extremely alert to efforts to disapply the Convention’s protections in certain circumstances, given their very real potential to disapply them within domestic prisons as well. Perhaps appropriately given that it was written from Birmingham Jail, the words of Dr. Martin Luther King Jr.: ‘injustice anywhere is a threat to justice everywhere’, take on a new resonance in this context.
The political declaration which will emerge in very short order from the Committee of Ministers at its meeting in Chișinău on May 14-15 will provide a telling signal for how the governments of the countries comprising the Council of Europe view, and wish to uphold, a key principle underpinning the entire Convention system for protecting human rights. The contents of the declaration and the political and judicial responses to it could have far-reaching consequences for the administration of prisons and the protection of rights therein in every Council of Europe member state. The consequences, however, are unlikely to be confined only to prison, or only to prison conditions in the setting of extradition or expulsion. Imprisonment has been a major source of the European Court of Human Rights’ interpretation of the application of Article 3 generally. Changes to how Article 3 is to be applied in this context will have therefore have implications for all forms of detention and deprivation of liberty. This includes places which, as the United Nations’ Subcommittee on the Prevention of Torture has recently emphasised, are only beginning to be understood as places where liberty can be deprived, including institutions for older people, and for disabled people. The positions which seem to underpin these efforts to alter and reduce the protections of Article 3 therefore merit very close scrutiny and deep consideration of what Article 3 in fact requires before any of its protections are diminished.
First, the efforts to reduce the protections of Article 3 in the setting of imprisonment demonstrate real and concerning historical amnesia about why Article 3 was necessary in the first place. Detention has acted as a key generator of instruments seeking to protect dignity, traceable from Article 3 of the Geneva Conventions (1949) prohibition on ‘outrages on human dignity’, to the UN Standard Minimum Rules for the Treatment of Prisoners (Mandela Rules) (2015), to the European Prison Rules (2020). These standards have been generated precisely because our political and legal ancestors saw the consequences of a lack of such legal protection in prison or other deprivation of liberty environments and recognised that an absolute, non-derogable prohibition on torture and inhuman and degrading treatment was necessary.
A recurring motif in the critiques driving efforts to change Article 3 is that those who created Article 3 could never have envisaged its application to what might be considered as more ‘everyday’ prison conditions issues. However, a close legal analysis of the development of Article 3 shows that the jurisprudence of the Court is by no means expansive, nor that it has been developed thoughtlessly or without a grounding in empirical evidence of what prison conditions are actually like. Indeed, the European Prison Rules are a direct influence on the position of the Court, which document was created at a political level. Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) also shape the interpretation of Article 3. The CPT has been visiting prisons in Council of Europe countries for over 35 years, providing direct evidence about prison conditions from across states and developing standards to support Article 3’s compliance. The Court has therefore not been developing its interpretation of the application of Article 3 without an empirical, practical foundation. Its work has therefore not been in the abstract, but based on real conditions in actual member states, and the documented harms arising from them. Even so, the Court has stressed that its application of Article 3 does not have to fully align with or follow that of the CPT, indicating restraint and robustness on the part of the Court in its duties to apply the Convention.
Even a surface-level examination of the Court’s decisions on prison conditions which breach Article 3 undermines any argument that the Court is somehow raising trivial or minor matters to the level of inhuman or degrading treatment. The Court has been careful to avoid laying down any general or comprehensive statements regarding when Article 3 will be violated in prison cases. Each scenario must be assessed on its own merits. The Court emphasises that the presence of physical and mental suffering, fear, feelings of inferiority, and humiliation are core components to be assessed under Article 3. The Court examines the cumulative effect of conditions, placing reliance on factors such as the length of time in a cell, the size of the cell, the material conditions, the presence of natural light, and access to out-of-cell activities. An intention to humiliate or debase the person is also relevant in considering whether treatment is degrading. The Court’s concern for bodily integrity and physical and mental well-being, as well as one’s sense of integrity and self-worth under Article 3 is evident, with recent case law referring to ‘continuous accumulation of stress … mental harm and anxiety’. This careful approach, weighing up all aspects of the experience of detention, is a key protector against illegitimate expansion of the sphere of Article 3.
When we assess the kinds of conditions which the Court has found to be in breach of Article 3, it is clear that the standard for finding a breach of Article 3 is ‘high’, found in the case of the most serious issues. Violations of Article 3 have been found in circumstances where a person was strip-searched when seeking to vote in prison; where prisoners were subjected to systematic violence by staff in order to instil fear and obtain the complete submission of prisoners; where prisoners were found not to have a bed to sleep in and only one or two square metres of space for 23 hours a day, in which space they also had to use the toilet. Are these the kinds of practices which we wish to say are permitted by the Convention?
It is true that the physical space afforded to detainees may be challenging for states to alter given that prisons are physical structures already in place. However, as the CPT has been saying for many years, compliance with Article 3 requires not only an improvement in material conditions, but an accompanying effort to reduce reliance on imprisonment and increasing prison numbers. The position of the European Court on Human Rights on cell space is that there is a strong presumption that having less than three square metres of space in a multi-occupancy cell, excluding the space occupied by sanitary facilities such as a sink and toilet, breaches Article 3. However, the Court has also said that this presumption can be rebutted if the cumulative effect of other conditions alleviate this lack of space, which include having three hours a day outside the cell, access to drinking water, having an individual bed, and no obstacles impeding free movement in the cell. Space alone is not the only consideration. Extremely limited space is very likely to tip the balance towards a finding that there is a real risk of degrading treatment. In Bivolaru and Moldovan v. France, for example,there was direct evidence that the applicant would be held in a cell in a prison in Romania with 2-3 square metres of space, inclusive of sanitary fixtures, which was a heavy factor for consideration. However, even then, this factor not the only one for a court to weigh. The Court also examined the reassurances provided concerning out of cell time and freedom of movement, and found them to be inadequate.
The square metre considerations may seem somewhat abstract and, as a result, are easy to criticise as unduly restrictive on states’ authority to administer their prison systems. An assessment of the practical experience and effects of such conditions, however, provides ample justification for a position which is closer to a bright-line rule under the Convention. Three square metres of space is about the size of one and a half single beds. A small car parking space is around 11 square metres. In three square metres, a person, sharing with others, along with a chair and small table, may be required to spend upwards of 20 hours per day, to use the toilet there, perhaps also to eat. This may be their living space for several years. The position of the Court and the CPT on space is not an administrative inconvenience preventing extradition or the legitimate administration of prisons, but a barely survivable minimum standard. The effects of a lack of space and overcrowding are demonstrably pernicious. The CPT summarises the consequences as including ‘increased tensions and violence, fewer purposeful activities and less preparation for prisoners returning to the community’, none of which bode well for either safety in prisons or the likelihood of reducing reoffending.
The suggestion that states are unable to effect deportation, extradition or execution of European Arrest Warrants because of an overly expansive interpretation of Article 3 is puzzling to observers of prison conditions within Europe. There is an abundance of evidence from CPT reports and domestic empirical work that prison conditions in European countries continue to fall substantially below even the minimum requirements of Article 3. Overcrowding is pervasive in many countries, prisoners sleep on mattresses on floors in Ireland, having to choose whether to place their head beside the cell-door and get struck every time it is opened, or beside the toilet. Access to basic healthcare is too often inadequate, with research demonstrating categorically that people in prison have shorter life-spans and substantially worse health than people living in the community. Hopelessness abounds, taking root in long periods of lock up, and increasingly long sentences. These conditions are present in European Union and Council of Europe prison systems; these problems are not confined to other countries. The source of the problem identified by the Conference of Justice Ministers is that prison conditions in the countries for which they are responsible are so often destructive of human dignity, not that judges have got carried away.
The position of those seeking to reduce the application of Article 3 also appears to rely on an assumption that people in prison or facing prison are seeking somehow to weaponise the conditions of their degradation on a wide scale. However, research shows that people in prison are often entirely disconnected from the idea of themselves as holders of rights, feeling unworthy of protection. The fact that international human rights monitoring bodies existed is viewed by some people in prison as offering an important, unanticipated, connection to a status as a human being deserving of worth. Across Europe, people in prison face formidable barriers to access to justice to mount arguments at all that their situation is in breach of Article 3.
The situation of resistance to European Arrest Warrants (EAWs) under European Union law is of keen interest in the current context. The CJEU’s decision in Aranyosi and Căldăraru established that, in very limited circumstances, execution of an EAW could be refused on the basis that the individuals in question would be detained in conditions in breach of Article 3. However, as subsequent cases clarified, the assessment must be highly specific to the individual and to the particular conditions to which the person was likely to return. In EDL, the CJEU found that the surrender of a person who is seriously ill may be postponed, and assurances sought, but only in circumstances where he or she is at risk of imminent death, or would face a real risk of a serious, rapid and irreversible decline in his or her state of health or a significant reduction in life expectancy. If those assurances and other information cannot rule out such a risk, then execution can be refused. Though Aranyosi and Căldăraru dealt with systemic concerns rather than individual circumstances as EDL did, it is clear from both cases that an individualised approach, which explores the precise effects of the impugned circumstances on the person who is subject to the EAW, is necessary. The exceptionality of refusal was stressed in both cases, along with the importance of avoiding impunity for those convicted of offences. The Court has emphasised the importance of assurances provided by the issuing judicial authority and that it is impermissible for an executing judicial authority to disregard them.
The hope offered by the approach in Aranyosi and Căldăraru was that it would spur efforts to ensure that what should be an EU-wide minimum standard, expressed, for example, through the cognate Council of Europe instrument – the European Prison Rules – would be exactly that, European-wide and that the case would be a powerful lever in levelling up prison conditions across the Union in order to ensure mutual trust and mutual recognition could have a strong grounding in practice. However, it appears that states have instead responded by providing reassurances that people will be detained in ‘fundamental rights compliant’ prison conditions at an individual level for the purposes of responding to an EAW request, not improving standards across the board. Moves by European Union Justice Ministers to dilute fundamental rights protections in the case of prisons lead to an almost absurdist position that it is the minimum requirements to protect human dignity which are problematic and not the lack of action to remediate them. Surely mutual recognition requires, as the European Parliament has previously advocated, a Europe-wide effort to bring prisons up to a minimum standard, not to diminish that standard to avoid the implications of mutual recognition and the European Union’s commitment to human rights.
Though by no means a concept exclusive to European norms or history, the protection of human dignity is seen as part of the ‘very essence’ of the European Convention on Human Rights. Dignity is of special relevance to Article 3, with clear links between its prohibitions on torture and inhuman and degrading treatment and dignity. There has long been a gap between the aspirations of the Convention and the implementation of its principles in practice, particularly in the setting of imprisonment. However, it remains the case that, in the literature on prison regimes and the protection of human rights, Europe is generally understood as a place where deviations from fundamental standards are viewed as matters of concern rather than outcomes to be pursued.
The fundamental precept underpinning Article 3 is the idea that people in prison must always be seen as human. For Europe to send a message that this may no longer matter in prison systems within or beyond its borders would be a major regression for Europe’s desire to uphold the values of human rights and democracy in all its actions. Moreover, the idea that harsher or more degrading prison conditions will create greater safety is misconceived. As Liebling describes, legitimate prison regimes require adherence to the principles of law, and, if we seek to promote rehabilitation, we need to support prisoners to reconnect to social values. Research also suggests that overcrowding and turnover in prisons are both associated with violent misconduct, poorer health, that there is no simple relationship between prison conditions and rates of recidivism, and that there is no compelling evidence of the deterrent effect of increased severity.
The ideas underpinning Article 3 concern universal matters, and represent an effort to avoid the very worst of human experiences. Snacken warns us: ‘what human dignity means … often depends on who gets to define it’. Efforts to weaken the protections of Article 3 are efforts to constrain the application of the concept of human dignity.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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