CEDH · CASELAW;CLIN;ENG — 18 avril 2024

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France - 32439/19, 37876/19 and 46898/19 Judgment 18.4.2024 [Section V] Article 13 Effective remedy Effectiveness of preventive remedy for rectifying poor detention conditions during industrial action in prison: no violation Article 35 Article 35-1 Exhaustion of domestic remedies Preventive remedy effective in principle for rectifying demeaning detention conditions following industrial action in prison: partly inadmissible Facts – From 5 to 20   March 2019, in response to a knife attack against two prison officers, industrial action was taken in the prison where the ten applicants were being held. The applicants complained about the involvement of the Regional Intervention and Security Teams (“the ERIS”) in the day-to-day management of the prison during this period, and about the regular body searches to which the ERIS subjected them. They further complained of their conditions of detention and about being deprived of contact with the outside world. Lastly, the applicants submitted that no effective preventive remedy had been available to them. Law – Article   35 §   1: Objection of non-exhaustion of domestic remedies – (a)   Preliminary remarks – The combined requirements of Articles   13 and   3 with respect to conditions of detention implied the coexistence of preventive and compensatory remedies, which had to be complementary. (b)   General considerations relating to the preventive and compensatory remedies – Under French law the two remedies were independent: preventive action by means of an urgent application for protection of a fundamental freedom ( référé-liberté ) was not subject to prior compensatory action by means of proceedings to engage State liability, nor did it exclude such action subsequently. In principle, access to a compensatory remedy for damage incurred as a result of detention in conditions breaching Article   3 did not exempt an applicant from having to pursue the effective preventive remedy available under the domestic law. The Court considered that this interplay between the remedies under Article   13, on the one hand, and the requirement under Article   35 §   1 to exhaust all domestic remedies, on the other, was compatible with the approach taken in its case-law, despite the short length of the detention period in issue. Concerning the effectiveness of the two remedies, the Court drew attention to the following elements. (i)   With regard to the compensatory remedy, it reiterated that action to engage the State’s liability for demeaning conditions of detention was an available and adequate avenue of redress – that is, one that had reasonable prospects of success for applicants who had been exposed to such conditions. In principle, applicants were thus required, once they had been released or transferred to a different cell, to avail themselves of the compensatory remedy in question in order to comply with the rule of exhaustion of domestic remedies. (ii)   With regard to the preventive remedy, the Court reiterated its finding in J.M.B. and Others v.   France to the effect that the limits on the powers of urgent-applications judges to issue orders prevented them from remedying breaches of prisoners’ rights under Article   3, where such breaches were the result of prison overcrowding. It had concluded that, in such a context, an urgent application for protection of a fundamental freedom did not amount to an effective preventive remedy. It therefore fell to the Court to rule for the first time on whether an application to the administrative courts provided an effective preventive remedy, on the assumption that, as in the present cases, the allegedly demeaning conditions of detention had not arisen in the context of prison overcrowding. (c)   Effectiveness of the preventive remedy – The Court pointed out that it had previously found that the system of urgent applications for protection of fundamental freedoms enabled urgent-applications judges, in the event of an established emergency, to rectify promptly any serious and manifestly unlawful breaches of such freedoms. Furthermore, the administrative courts adjudicated on the basis of standards aligned with those of the Court in such matters, taking into account the detainees’ situation of complete dependency on the prison service, their vulnerability and the material conditions of their detention. In contrast to the case of J.M.B. and Others , which required the judge to order structural measures, in the present cases the urgent-applications judge had been required to address a situation linked to a single event of an exceptional and temporary nature. In exercising the power to give orders, the urgent-applications judge had been fully entitled to order urgent interim measures concerning, in particular, hygiene, exercise and family contacts, as well as body searches, and thus remedy the alleged breaches of Article   3. Lastly, the applicants had avenues available to them by which they could, if necessary, have sought enforcement of the measures ordered by that judge. Having regard to these considerations, and given the scope of the judicial review exercised by urgent-applications judges on the facts and merits of applications lodged in circumstances such as those prevailing in the present cases, the Court held that the urgent application for protection of a fundamental freedom had had a reasonable chance of success. It further held that such an avenue could have resulted in an enforceable decision capable of promptly negating the effects of a breach of Article   3. The Court concluded that the urgent application for protection of a fundamental freedom had to be regarded, in the context of the matter at hand, as amounting in principle to an effective remedy. (d)   Exhaustion of remedies by the applicants concerned by the Government’s preliminary objection   – The applications of seven of the applicants, lodged without any prior attempt to seek a preventive or compensatory remedy, and the application of an eighth applicant, who had not exhausted his action to engage the State’s liability, were declared inadmissible in so far as they concerned the material conditions of detention and the lack of contact with the outside world during the industrial action in question. Article   3 (substantive aspect): The applicant Mr   Lahreche had been frisked by masked ERIS officers each time he had left his cell while the prison had been gradually returning to normal operations. This practice had lasted two or three weeks, starting from late March, and had occurred when the applicant had been taken out for exercise, that is, at least once a day. The ERIS’s prolonged presence in the prison had been justified by the need to ensure durable security inside that establishment. The Court considered that, in principle, the type of body search complained about by the applicant involved the detainee remaining clothed. In addition, the applicant had not provided any evidence supporting his allegations that the ERIS officers’ wearing of masks had not only caused him stress but also amounted in itself to a breach of his human dignity. The Court therefore held that the applicant’s situation, arising from the ERIS’s intervention during the industrial action in question and the regular body searches to which the ERIS had subjected him, did not reach the threshold of severity to be regarded as inhuman or degrading treatment. Conclusion : no violation (unanimously). Article   3 (substantive aspect): The deterioration in the applicants’ conditions of detention had been the result of a strike by prison staff following an attack on 5   March 2019. The competent authorities had thus been faced with an unforeseeable situation, requiring immediate action on their part. Despite the relatively short length of the period in issue and the steps taken by the prison service to return promptly to normal operations, the Court held that the cumulative effect of (i)   the round-the-clock confinement of the applicants Mr   Leroy and Mr   Lahreche in their cells for some twenty days; (ii)   their lack of access to the exercise yard or to fresh air and natural light; and (iii)   the deprivation of contact with the outside world, whether in the form of phone calls, family visits or meetings with their lawyers, had exposed the applicants to conditions of detention that had not met their basic needs, to an extent that they had to be regarded as demeaning (see Clasens v.   Belgium ). In those circumstances the Court, while acknowledging the considerable efforts made by the competent authorities to address an exceptional situation and maintain security in the prison, found that the applicants’ conditions of detention had amounted to degrading treatment. Conclusion : violation (unanimously). Article   13 in conjunction with Article 3: Given that a violation of Article   3 had been found with regard to the demeaning conditions of detention, the applicants Mr   Leroy and Mr   Lahreche had an arguable complaint under Article   13. The Court noted that in the present cases it had accepted that an urgent application for protection of a fundamental freedom had in principle been an effective preventive remedy for rectifying the conditions of detention in the circumstances in issue. It therefore remained for the Court to examine whether that remedy had been effective in practice, in the specific case of the two applicants, taking into account the urgent-applications judge’s investigation and the times taken to deliver judgment. First, the proceedings (before the administrative court and the Conseil d’État ) had lasted a total of one month and seven days and had ended after the industrial action in issue had ceased. The sequence of events indicated that the applicants had been able to defend their interests before the judge, who had decided to hold hearings, delivered reasoned decisions and addressed all of their arguments in accordance with the specific procedure for urgent applications. Second, given the circumstances of the present cases and the fact that a first-instance judgment had been delivered while the situation in issue had been ongoing, the Court held that the time taken to rule on the applicants’ appeal had not substantially affected the effectiveness of that appeal. It followed that the applicants had had an effective remedy available to them. Conclusion : no violation (unanimously). Article   41: EUR   2,000 to each of the applicants Mr   Leroy and Mr   Lahreche in respect of non‑pecuniary damage. (See also Neshkov and Others v.   Bulgaria , 36925/10 et al., 27   January 2015, Legal Summary ; Clasens v.   Belgium , 26564/16, 28   May 2019, Legal Summary ; Ulemek v.   Croatia , 21613/16, 31   October 2019, Legal Summary ; J.M.B. and Others v.   France , 9671/15 et al., 30   January 2020, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .