The indignity of French prisons: Using ECtHR judgments as a lever for action

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By Prune Missoffe, Head of Analyses and Advocacy, and Nicolas Ferran, Head of litigation, at the French section of the International Prison Observatory (OIP-SF)

Prune Missoffe, ©OIP-SF

Nicolas Ferran, ©OIP-SF

You can also find the original French version of this article here.

From the litigation campaign to the condemnation of France

In its judgment JMB and others v. France of 30 January 2020, the European Court of Human Rights (ECHR) condemned France on the basis of Article 3 of the European Convention because of the indignity of its prisons. Noting that "the occupancy rates of the prisons concerned reveal the existence of a structural problem", it ordered the national authorities to adopt general measures to guarantee prisoners dignified conditions of detention, in particular by ensuring the "definitive reduction of prison overcrowding". The ECHR also recognised the violation of Article 13, sanctioning the absence of an effective domestic remedy to remedy these detention conditions contrary to human dignity. In particular, it underlined the ineffectiveness of the emergency proceedings that could be brought before the administrative judge, and in particular of the interim relief procedure.

This conviction was the result of a litigation campaign conducted since 2015 by the French section of the International Prison Observatory (OIP-SF) in reaction to the inaction of the public authorities. In total, some forty applications targeting seven institutions were filed with the ECHR. The aim of this campaign was certainly to obtain a conviction of France but, above all, the consequences that could be drawn from such a conviction. With regard to Article 3, recognition of inhumane conditions of detention would force the government to reorient its penal policy towards less recourse to imprisonment. As for the recognition of a violation of Article 13, it would open up the possibility of requiring the domestic administrative courts to review the conditions of detention, which in turn would exert pressure on the national authorities.

From the conviction to the monitoring the (non-)execution of the judgment

In the litigation and advocacy strategy put in place by the IOP-SF following the conviction of France, the monitoring of the (non-)execution of the judgment can be divided into two parts.

Giving the Court's injunctions a central place in the public debate

The first is advocacy: the aim is to use the findings and injunctions formulated by the ECHR - which require the State to act - to promote progress. The OIP-SF is thus working to make the JMB ruling a reference decision in its positions and statements to institutions, politicians and the media, but also to other actors in the prison-justice world. The fight against prison overcrowding has been at the heart of all legislative and parliamentary activity: the Finance Act, the parliamentary enquiry into the dysfunctions of prison policy, the information mission on the prison integration and probation services, and the examination of France by the Parliamentary Assembly of the Council of Europe. Sometimes central, it is almost always mobilised because it is intrinsically linked to the respect of all the rights of detainees and the penal and prison policies implemented.

Advocacy actions must also work to prevent the judgment from being poorly executed, i.e. the government from providing the wrong solutions. These include the policy of building more and more prison places. This has been a constant for over thirty years, and in reality it means that more and more people are being locked up. The challenge is therefore to make the judgment and its injunctions central, while countering the perverse effects that governmental responses can have.

It also seemed essential to bring together the strengths of civil society organisations in order to multiply their voices, which are as many ways of soliciting the State, but also to carry a common voice. Numerous organisations from the prison-justice world, which regularly engage in dialogue through an informal network, have thus taken up the judgment. This was done both in their own advocacy and in collective initiatives, for example in the context of the vote on the 2022 prison budget, or in a coordinated manner, such as in the context of the hearings requested by the aforementioned parliamentary commission of enquiry. The OIP-SF has also set up an informal working group to monitor the execution of the judgment, bringing together lawyers' and magistrates' unions, an association of lawyers defending the rights of detainees, and the national organisation representing French lawyers. It has made it possible to send several additional contributions to the Committee of Ministers of the Council of Europe in the context of the first review of the execution of the judgment.

In their decision of September 2021, the Ministers' Deputies found that the judgment was indeed not executed[1]. In turn, they suggested that increasing the prison population was not a satisfactory solution and called on the authorities to adopt general measures and, in particular, "new legislative measures that would regulate the prison population in a more restrictive manner". The ministers' delegates also heard concerns about the limitations of the new remedy and asked the authorities to comment on them.

As a member of the National Consultative Commission on Human Rights, the OIP-SF was also closely involved in the drafting of an "Opinion on the Effectiveness of Fundamental Rights in Detention", which was considered in the light of the condemnation by the ECHR and adopted in March 2022. Finally, it joined forces with Amnesty International to co-sign the report "Dignity in prison. What is the situation two years after France's conviction by the ECHR?” published in June 2022.

Other institutions, such as the Contrôle général des lieux de privation de liberté, the French independent administrative authority of reference on prisons, have also used this condemnation as a reference point in their observations of the conditions of detention and the policy adopted by the French authorities, but also to refer directly to the Minister of Justice. In its report published in June 2021, the Committee for the Prevention of Torture (CPT) recalled the findings and injunctions of the ECHR before calling for the adoption "within six months, [of] a global strategy for penal and penitentiary matters [...] in order to drastically reduce the occupancy rate of French prisons and to offer dignified conditions of incarceration". In its aforementioned decision of September 2021, the Committee of Ministers in turn relied on the CPT's recommendations to urge France to adopt "a coherent long-term strategy to reduce the occupancy rate of prisons".

Parliamentarians are also taking up the issue. In September 2022, fifteen senators tabled a bill "aimed at putting an end to prison overcrowding" which introduced a binding prison regulation mechanism prohibiting incarceration beyond the number of operational places. The "urgent need for the introduction of such a mechanism" is mainly motivated by the European condemnation. The proposal also aims to include this mechanism in a more global reflection on how to develop a deflationary policy. The explanatory memorandum also refers specifically to the ECHR's recommendation to revise the method of calculating operational places so that, in addition to the size of cells, it takes into account many other aspects of daily life and care in prison.

In the wake of this, some MPs are considering tabling a similar proposal in the National Assembly, again after discussions with civil society actors who monitor the execution of the judgment.

Making the conviction a new litigation lever

The second strategic aspect of monitoring the judgment is to make it an anchor point for documenting blockages and shortcomings with a view to taking future legal action. The results of which in turn feed into the advocacy.

A few days after the judgment was published, the OIP-SF was already taking new legal action. With other organisations, it obtained from the Court of Cassation that it took into account, for the first time, the issue of the dignity of detainees, and then from the Constitutional Council that it censured several legislative provisions. These jurisprudential developments forced the legislator to adopt a law in April 2021 opening a new legal remedy for detainees to challenge their undignified detention conditions, as demanded by the ECHR. Advocacy then took over with the production of a collective note addressed to parliamentarians and presented during a hearing. The association indicated the progress made but, above all, the limits of the proposed system, particularly with regard to the requirements imposed by France's conviction. Some of the points of concern raised led to the formulation of amendments to the proposed law by parliamentarians.

Following the adoption of this mechanism, the OIP-SF continued to work in concert with those involved in the justice system in order to gather information on the use made of it via a questionnaire for lawyers, to promote its use via the production of a document for lawyers in December 2021, and to evaluate its effectiveness. To date, the feedback shows little use of the new remedy, probably due to the malfunctioning of the system denounced during the legislative debates. A training course for lawyers has been launched in partnership with the Conseil national des barreaux.

At the same time, the OIP-SF is pursuing its litigation activities with the aim of forcing the judge, this time an administrative judge, to participate in the improvement of detention conditions. In its condemnation of France for violation of Article 13, the ECHR pointed out the limited scope of the power of injunction conferred on the interim relief judge by the case law. The latter considered that he was not entitled to pronounce structural measures such as the renovation of buildings or the reinforcement of the means of the integration and probation services. Therefore, only limited, one-off measures, usually with little effect on the conditions of detention, could be obtained. The Court then noted that the interim relief judge made his intervention dependent on "the means available to the administration" by authorising the latter to invoke "the scale of the work to be carried out or its cost to obstruct the interim relief judge's power of injunction". Finally, the Court emphasised that the execution of the injunctions issued was subject to "delays that do not comply with the requirement of diligent redress" and that these prescriptions "do not always produce the expected results". These are all litigation levers at the level of national courts that the OIP-SF has used to try to force the authorities to strengthen the procedures for monitoring the execution of the judgment. The inertia of the administrative judge led the association to refer again to the ECHR in September 2022 on the non-execution of the interim orders.

The inaction of both the legislator and the executive will thus feed into the next review of the execution of the judgment by the Committee of Ministers of the Council of Europe scheduled for the end of the year. In conclusion, JMB is a very important step in the recognition of prison overcrowding and the indignity of prison conditions, and the monitoring of the execution of this judgment allows us, in a dynamic approach, to pursue litigation and advocacy with a view to obtaining further progress

[1] https://oip.org/analyse/le-conseil-de-leurope-tacle-linertie-de-la-france-face-a-la-surpopulation-carcerale/