No violation of Art. 3;Violation of Art. 13;Costs and expenses partial award - Convention proceedings

Alvina Gyulumyan;Christos Rozakis;Elisabet Fura;Françoise Tulkens;Javier Borrego Borrego;Jean-Paul Costa;John Hedigan;Josep Casadevall;Kristaq Traja;Lech Garlicki;Loukis Loucaides;Luzius Wildhaber;Margarita Tsatsa-Nikolovska;Nicolas Bratza;Peer Lorenzen;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych

The applicant was born in DATE and is currently in FAC .

The applicant , who claims to be a revolutionary by profession , was taken into custody on DATE . He was placed under judicial investigation in connection with a series of terrorist attacks in GPE and was given a life sentence on DATE for the murder of CARDINAL police officers and an acquaintance on DATE .

He was held in solitary confinement from the moment he was first taken into custody in DATE until DATE , notably in FAC ( GPE ) .

According to his lawyer , this entailed his being held in a QUANTITY cell that was run - down and poorly insulated , with an open toilet area . The applicant was prohibited all contact with other prisoners and even prison warders and was only allowed to leave his cell once his fellow inmates had returned to theirs . His sole permitted activity outside his cell was a TIME DATE walk in a triangular area that was QUANTITY long and QUANTITY wide at the base , receding to QUANTITY at the vertex . This area was walled in and covered with wire mesh . His only recreational activity was reading the newspapers or watching television on a rented set . The only visits he received were from his lawyers and , once a month , a priest . The prison authorities ignored his requests to be allowed visits from anyone else . Mail intended for the applicant had gone missing , although it had not been officially confiscated , and he had not received a DATE jacket that had been brought to the prison for him in DATE until DATE .

The Government did not dispute these facts . They said that the cell was lit by natural light , a ceiling light and a reading lamp . None of the members of the applicant ’s family had ever applied for permission to visit . CARDINAL requests to visit had been turned down , both from journalists .

The documents in the case file show that the applicant has received visits from CARDINAL different lawyers during his time in prison .

His current representative , who is also his wife under NORP law , visited him CARDINAL times DATE and DATE .

The parties have produced a series of decisions requiring the applicant to be held in solitary confinement for successive DATE periods .

The first was taken when the applicant was first detained ( DATE ) . It consists of a form on which the following boxes were ticked : “ Need to prevent communication with CARDINAL or more other prisoners ” and “ Undermining of order and discipline in the prison ” . There were no observations by the applicant . DATE , a doctor issued a medical certificate stating :

“ [ The applicant ’s ] health is compatible with solitary confinement . However , he must , if possible , have complete rest for DATE . ”

A decision dated DATE to prolong the applicant ’s solitary confinement from DATE to CARDINAL DATE was approved by ORG . The reasons stated were the same , but the applicant made the following observations :

“ I consider that these solitary - confinement measures , especially the disturbances at TIME , indicate a desire to harass a political prisoner . ”

In a medical certificate issued DATE , a doctor

“ certif[ied ] that [ the applicant ’s ] health [ was ] compatible with his continued solitary confinement ” .

A decision of DATE , which was applicable from DATE to CARDINAL DATE , cited the same reasons and was approved by ORG . The applicant refused to sign the notice informing him of the decision . In a medical certificate issued DATE , a doctor

“ certif[ied ] that [ the applicant ’s ] health [ was ] compatible with his continued solitary confinement for administrative reasons ” .

A decision dated DATE , which was approved by ORG and was applicable from DATE to CARDINAL DATE , spoke of the “ need to prevent communication with CARDINAL or more other prisoners ” and a “ security measure ” . The applicant was transferred that day to ORG .

A proposal to prolong the measure dated DATE cited the “ need to prevent communication with CARDINAL or more other prisoners ” .

On DATE a doctor from ORG issued a certificate stating :

“ Health currently compatible with continued solitary confinement . ”

On DATE the measure was prolonged for a period of DATE starting on DATE .

On DATE a doctor from ORG issued a medical certificate stating that the applicant ’s health was satisfactory and compatible with solitary confinement .

A further proposal to prolong the measure dated DATE referred to “ the undermining of order or discipline in the prison ” .

On DATE the measure was prolonged for DATE starting on DATE .

A proposal of DATE for a further extension referred to “ the need to prevent communication with CARDINAL or more other prisoners ” .

On DATE a doctor from ORG issued a certificate stating that the applicant ’s health was satisfactory .

On DATE a doctor from ORG issued a certificate stating that the applicant ’s health was compatible with his detention in the segregation unit .

On DATE the measure was extended for a period of DATE on DATE . A proposal dated DATE mentioned a “ precautionary or security measure required for CARDINAL or more of the following reasons : need to prevent communication with CARDINAL or more other prisoners ” .

It was not until DATE that the applicant was notified of the measure applicable for the period from DATE to CARDINAL DATE . He made the following observation :

“ I do not think it right that I should be asked to sign DATE . ”

On DATE the applicant was notified of a measure which referred to the “ need to prevent communication with CARDINAL or more other prisoners ” and to “ international terrorism ” .

On DATE a doctor from ORG issued a certificate stating that the applicant ’s health was compatible with his detention in solitary confinement .

A decision dated DATE , which was applicable from DATE to DATE , referred only to the “ need to prevent communication with CARDINAL or more other prisoners ” . The applicant made the following observations on the notification slip :

“ I note that PERSON ... , the director , has already replied to these observations , even before I have made them , it is stated below : CARDINAL.CARDINAL.CARDINAL before ORG in the prison . Consequently , the remarks I am required to make have become superfluous . Even so , my solitary confinement is a form of torture . ”

This measure was authorised by the head of ORG at ORG on DATE , as were those that followed .

On DATE a doctor from ORG certified that he had examined the applicant and found his health to be compatible with solitary confinement .

A proposal made on DATE referred to the “ need to protect [ the applicant ] from the rest of the prison population ” and the “ need to prevent communication with CARDINAL or more other prisoners ” . The applicant made the following remarks :

“ I note that I am increasingly subject to this base harassment and am being singled out as a political prisoner . I reject the reasons given for keeping me in solitary confinement . ”

On DATE a doctor from ORG certified that solitary confinement was not contraindicated for the applicant .

The following reasons were given for a proposal for a further extension dated DATE :

“ Precautionary or security measure for CARDINAL or more of the following reasons :

( i ) need to protect you from the rest of the prison population ;

( ii ) need to prevent communication with one or more other prisoners . ”

The applicant made the following comments :

“ I have not had a check - up , been weighed or had my blood pressure taken , etc . ... I note that the lower section of the questionnaire has already been filled in , thus making a mockery of the observations which I have been asked to make . Please give me a further complete medical check - up . ”

A decision of DATE referred in addition to “ the undermining of order and discipline in the prison ” and “ potential dangerousness linked to acts of terrorism ” . The applicant made the following comments :

“ I have not had a medical certificate following a medical examination and you are using forged documents which you do not even dare to show me . I request an immediate interview with the governor . ”

A decision of CARDINAL DATE again cited the “ need to prevent communication with one or more other prisoners ” .

On DATE a doctor at ORG issued a certificate certifying that the applicant ’s health was satisfactory .

Proposals of DATE and DATE were in the same terms as the decision of CARDINAL DATE . On signing the proposal of CARDINAL DATE , the applicant stated :

“ I sign under protest against an unjust repressive measure ( decision ) against a political prisoner held hostage by ORG . ”

On DATE a ORG doctor issued a certificate certifying that the applicant ’s health was satisfactory .

It was followed by a further certificate on DATE stating that the applicant was fit enough to remain in solitary confinement and a certificate of DATE stating that solitary confinement was not contraindicated . A further certificate drawn up on DATE stated that the applicant was in satisfactory health and fit enough to remain in solitary confinement .

Proposals made on DATE , DATE and DATE cited the need for “ precautionary and security measures in view of the prisoner ’s character and record ” .

The applicant commented as follows on the proposal of CARDINAL DATE :

“ I acknowledge receipt of notice but protest against the renewal of this unjustified measure of vile political repression that has been imposed on me . Please provide me with a copy . ”

On the proposal of DATE , he noted :

“ The signature on this notice by the disloyal deputy director PERSON further attests to the unfairness of repressive measures imposed by a prison service that acts unlawfully against political inmates such as me . ”

The measure dated DATE referred to “ precautionary and security measures in view of the prisoner ’s character and record ” .

On DATE a doctor from FAC issued a medical certificate in which he stated :

“ The applicant ’s health is currently compatible with his continued detention in solitary confinement subject to his receiving psychiatric treatment . ”

Proposals made on DATE and DATE stated :

“ The prisoner must remain in administrative solitary confinement on order and security grounds , in view of his character and record and the nature of his court cases . ”

The Ministry of Justice stated in decisions of DATE and DATE :

“ The character of this prisoner , who is an ORG [ high - security prisoner ] and objectively dangerous , in particular because of the nature and length of the sentence he faces , justifies his continued solitary confinement on order and security grounds . ”

On DATE the senior doctor at FAC issued a certificate which read :

“ The circular of DATE on solitary confinement states that the opinion of a doctor will only be sought after a DATE ’s confinement . Last certificate issued on ( illegible ) . I do not , therefore , need to append a certificate regarding prolongation to this note . ”

On DATE another prison doctor certified that the applicant ’s health was compatible with his detention or continued detention in solitary confinement .

A further certificate dated DATE confirmed that the applicant ’s health was compatible with his continued detention in solitary confinement .

A decision of CARDINAL DATE cited the following reasons :

“ You must remain in solitary confinement for a further period of DATE on order and security grounds , in view of your character , your classification as an ORG , and the nature of your convictions and of the cases currently pending . ”

A decision of DATE , which took effect on DATE , read as follows :

“ It is necessary to prolong your solitary confinement for a further period of DATE in order to preserve order and security in the prison in view of your dangerousness , your ability to influence fellow inmates and the risk of your escaping given the substantial aid potentially at your disposal . ”

The applicant made the following observations :

“ I note that the infamous masquerade by the NORP militant PERSON , who runs ORG Ministry of Justice on behalf of the imperialist forces that are seeking to reduce GPE to the level of a suzerain of GPE , continues . To heck with Human Rights and with PERSON itself . ORG . ”

DATE . On DATE the authorities relied on

“ order and security grounds , in view of your character , your classification as an ORG and the offences for which you have been imprisoned ” .

The decisions of DATE , DATE and DATE were couched in identical terms to the decision of DATE , save that the end of the sentence read “ given your access to outside help ” .

On DATE the senior doctor at FAC issued a medical certificate which read :

“ I , the undersigned , ... declare that [ the applicant ] is in quite astounding physical and mental condition after DATE in solitary confinement .

However , it is not proper for a patient ’s doctor to be required to issue a certificate that ought to be a matter for expert opinion . It is very difficult for a doctor to sanction solitary confinement on administrative , rather than medical , grounds . ”

On DATE another doctor issued a certificate in the following terms :

“ I , the undersigned , ... certify that I have DATE examined [ the applicant ] .

No clinical examination was carried out . However , in view of his current mental condition , I am unable to give a medical opinion on whether he is fit to remain in solitary confinement . ”

On DATE and DATE ORG ratified decisions by the governors of ORG and ORG , dated DATE and DATE respectively , to place the applicant in solitary confinement after previous orders had automatically lapsed following his transfer .

The following reasons were stated in the decision of CARDINAL DATE :

“ Regard has been had to your personality , your classification as an ORG , the length of your sentence ( PERSON [ life imprisonment ] ) , the nature of the offences and your involvement in an international terrorist network . All these objective indicators of dangerousness make your continued solitary confinement necessary on security grounds . ”

On DATE a doctor from FAC certified that she had seen the applicant but had not been able to carry out a physical examination . She added :

“ However , in view of his current mental state , I am unable to give a medical opinion on whether he is fit to remain in solitary confinement . ”

On DATE the applicant commented as follows :

“ I have once again filled in this form , having already done so on DATE ... I denounce ‘ the white torture’ of perpetual solitary confinement which , following the ‘ serious provocation of CARDINAL December CARDINAL’ , has been aggravated by the obstruction of the fanlight , which now only opens to an angle of PERSON ( QUANTITY ) , preventing fresh air getting in . This is on top of the ban on my receiving visits or LANGUAGE lessons , in breach of the undertakings . You are committing a crime of ‘ lese - humanity’ . ”

On DATE a doctor from ORG practising in FAC issued the following certificate :

“ I , the undersigned , ... state that the doctors from the medical service at ORG are not qualified to judge whether the physical and mental condition of the prisoner PERSON , who is currently being held in ORG , is compatible with his continued solitary confinement . ”

On DATE it was decided to prolong the solitary confinement

“ in order to preserve order and security in the prison in view of your dangerousness , your ability to influence fellow inmates and the risk of your escaping given your access to outside help ” .

The same reasons were cited in a further extension of DATE , while a decision of DATE was worded in almost identical terms .

On DATE the doctor in charge of ORG ( “ the OCTU ” ) wrote to the governor of ORG in these terms :

“ I have met PERSON ... as I was asked for an opinion on whether there is any contraindication to this patient ’s remaining in solitary confinement .

Even though Mr PERSON is in reasonable physical and mental condition , strict solitary confinement for DATE and DATE is ultimately bound to cause psychological harm .

It is my duty as a doctor to alert you to these potential consequences so that you may take an informed decision .

On DATE the doctor who issued the certificate of DATE issued a second certificate in similar terms .

The following reasons were stated in a decision that was applicable from DATE :

“ ... in order to preserve order and security in the prison in view of your dangerousness , your ability to influence fellow inmates and the risk of your escaping given your access to outside help . ”

On DATE the doctor in charge of the ORG issued a medical certificate after examining the applicant “ for the purposes of the medical opinion required for continued solitary confinement ” . He stated that the applicant presented

“ a physical and mental condition that was entirely reasonable after DATE in solitary confinement ” ,

adding , however , that

this opinion does not constitute an expert opinion , which I am not qualified to give ” .

The following reasons were given for prolonging the solitary confinement in a decision of CARDINAL DATE :

“ It is necessary to prolong your solitary confinement in order to preserve order and security in the prison and to avoid your exerting an influence over your fellow inmates or attempting to escape . ”

In his observations , the applicant noted in particular :

“ DATE of strict solitary confinement , a ban on receiving visits or NORP lessons and a steady reduction in the amount of fresh air in the isolation cell from which even the old wooden school desk has been removed all serve to demonstrate the unfairness of the repressive measures that have been taken against a revolutionary political leader who will not be broken . ”

On DATE the measure was renewed for a further DATE on the following grounds :

“ Regard has been had to your character , your classification as an ORG , the length of your sentence ( PERSON ) , the nature of the offences and your involvement in an international terrorist network . All these objective indicators of dangerousness make your continued solitary confinement necessary on security grounds . ”

Decisions of DATE , DATE and DATE read as follows :

“ It is necessary for you to remain in solitary confinement in order to preserve order and security in the prison and to avoid your exerting an influence over your fellow inmates or attempting to escape . The fact that you have received a life sentence , your classification as a high - security prisoner and the nature of the offences for which you have been prosecuted militate in favour of your remaining in solitary confinement . ”

On DATE an assistant doctor from the OCTU at FAC issued a medical certificate in the following terms :

“ I , the undersigned , Doctor ... , an assistant doctor from the OCTU at FAC in GPE , certify that I have examined Mr PERSON , who was born on CARDINAL , in connection with a request for him to remain in solitary confinement .

From the medical standpoint , the problem posed by prolonged solitary confinement over DATE is that it may affect the prisoner ’s physical and mental health . ”

On DATE the doctor in charge of the OCTU at FAC provided ORG with the following summary of the medical care the applicant was receiving :

“ This patient , who , as you are aware , is in the segregation unit , receives CARDINAL mandatory medical visits from a member of the OCTU medical team DATE , as required by LAW .

He is currently in excellent somatic health . I am not qualified to express an opinion on his mental health .

In addition , Mr PERSON may on request consult members of the OCTU team independently of the mandatory medical visits to the segregation unit .

He has thus been able to consult an ophthalmologist ... and has been prescribed corrective glasses .

He has consulted a general practitioner several times independently of mandatory visits to the segregation unit on ...

Biological tests are performed regularly . ...

The treatment Mr PERSON has been receiving can be equated to comfort treatment : ...

It should be noted that Mr PERSON has refused any psychological help from the ORG [ ORG ] .

In DATE a further decision to prolong the solitary confinement was taken “ in order to preserve security and order , which are under serious threat owing to the applicant ’s implication in terrorist networks , his dangerousness and the risk of his escaping ” .

DATE . On DATE the applicant was transferred to FAC ( département of PERSON ) , where his solitary confinement ended . On CARDINAL DATE he lodged a fresh application with the ORG , in which he complained of the new conditions in which he was being held and , in particular , of the distance from GPE .

In DATE a book that had been written by the applicant with the help of a journalist was published under the title L’islam révolutionnaire ( “ NORP ” ) .

On DATE ORG wrote the following letter to ORG :

“ Mr PERSON received a somatic and psychiatric medical examination on his arrival at the prison on DATE .

He has at no stage been placed in solitary confinement in FAC .

As regards his somatic health , Mr PERSON receives the statutory care and may consult the OCTU on request .

As to his mental health , he was seen by an ORG psychiatrist as part of the standard induction procedure . No follow - up was prescribed at the time and the patient has not asked to see a psychiatrist since . He was offered an examination and this took place on CARDINAL DATE . The ORG have not recommended any follow - up to that appointment . ”

On DATE the applicant was transferred to ORG in the GPE area where he was again placed in solitary confinement . This followed a television programme in which , in the course of a telephone interview with a journalist , the applicant refused among other things to express any remorse for his crimes to the victims on the grounds that there were “ no innocent victims ” .

On DATE a doctor at ORG issued a medical certificate in the following terms :

“ I , the undersigned , ... certify that the prolonged period of solitary confinement to which Mr PERSON , who was born on DATE , is subject is detrimental to his mental health .

Bringing the solitary confinement to an end would go a long way to facilitating the monitoring of a chronic somatic pathology from which the patient has recently started to suffer which requires medical supervision and regular biological tests . ”

On DATE another doctor issued a medical certificate which read :

“ I , the undersigned , ... regularly see Mr PERSON , a prisoner in the segregation unit .

His continued solitary confinement is damaging his health ; it has now lasted for DATE and it would appear desirable from the medical standpoint for it to cease . ”

On DATE the applicant was transferred to ORG and on DATE to FAC . In both institutions he was kept in solitary confinement with the measure being periodically renewed , including on DATE ( see below ) .

On DATE and CARDINAL DATE the senior doctor at the OCTU at FAC issued CARDINAL medical certificates in exactly the same terms :

“ I , the undersigned , ... certify that Mr PERSON , who was born on DATE , has been in my care since his arrival at the prison .

The problems which Mr PERSON has had with his physical health are now stable .

Mr PERSON continues to make the same complaints about the difficulties of being held in full solitary confinement .

Since he does not wish to be treated by ORG at FAC and I am not qualified to determine the impact of the conditions in which he is detained on his mental state , a medical and psychological assessment would be desirable .

Certificate issued at the request of the prison authorities and delivered by hand for whatever purpose it may serve in law . ”

DATE . On DATE the applicant was transferred to ORG , where he is held under the ordinary prison regime .

On DATE the applicant lodged an application for judicial review with ORG , arguing that the decision of DATE to place him in solitary confinement should be set aside .

In a judgment of DATE , which was served on the applicant on DATE , ORG rejected the application , holding that the impugned decision was an internal administrative measure which the administrative courts had no power to set aside .

The applicant lodged an application for an order setting aside , on the grounds of formal invalidity , the decision of CARDINAL DATE to keep him in solitary confinement . In a judgment of DATE , ORG held as follows .

“ Although the authorities argue in their defence that the judge responsible for the execution of sentences gave an oral decision on DATE in favour of prolonging Mr PERSON solitary confinement , there is no evidence in the file to show that the regional director obtained the opinion of ORG before delivering his reasoned report to the Minister of ORG , even though , by virtue of the aforementioned provisions of LAW , the ORG is the only body empowered to decide whether solitary confinement should continue beyond DATE . It follows that Mr PERSON argument that the decision of CARDINAL DATE to prolong his solitary confinement was defective and must be set aside is well - founded .

As regards the submissions on the issue of compensation .

Although the formal invalidity of a solitary - confinement measure constitutes a fault capable of engaging the State’

The investigation shows that Mr PERSON has been sentenced to life imprisonment for the murder of police officers . He has been placed under investigation in connection with various terrorist cases , inter alia , for voluntary homicide and using an explosive device to destroy movable property . The applicant might use communications in FAC or on the outside to re - establish contact with the members of his terrorist cell or seek to proselytize other prisoners and possibly prepare an escape . That being so , the circumstances of the instant case were such as to justify in law the decision taken to prolong the solitary confinement for DATE . The damage alleged by Mr PERSON , which included the loss of contact with other prisoners , can not , therefore , be considered to have been a consequence of the procedural defect in the decision of CARDINAL DATE , so that his request for an order requiring the ORG to compensate him for the damage he claims to have sustained is unfounded . ... ”

“ Save in the circumstances set out in Articles D. CARDINAL to D. CARDINAL , prison staff must at all times be able to verify a prisoner ’s presence .

At TIME it must be possible to light cells when necessary . Cells should be entered only for good reason or in the event of imminent danger . In all cases , intervention must be by CARDINAL staff members and an officer , if CARDINAL is on night duty . ”

“ Rounds shall be made after lights out and during TIME at set times to be changed DATE by the senior custody officer , under the authority of the prison governor . ”

[ The words in italic were added or amended by the decrees of DATE and DATE : Decree no . CARDINAL of DATE , Article CARDINAL , Official Gazette of CARDINAL DATE , and Decree no . CARDINAL of DATE , ORG CARDINAL and CARDINAL , ORG of DATE . ]

“ Any prisoner in a communal establishment or unit may be placed in solitary confinement at his or her request or as a precautionary or security measure .

Orders for prisoners to be placed in solitary confinement shall be made by the prison governor , who shall inform the regional director and the judge responsible for the execution of sentences without delay . The prison governor shall also report to ORG at the first meeting following the prisoner ’s confinement or objection to a request for his or her confinement .

The prisoner may , either personally or through counsel , send any observations he or she has on the decision to the judge responsible for the execution of sentences .

The medical team shall be given a list of the prisoners in solitary confinement DATE . Prisoners in solitary confinement will receive a medical examination in accordance with Article D. CARDINAL . If the doctor considers it appropriate in view of the prisoner ’s health , he or she shall give an opinion on whether solitary confinement should cease .

Solitary confinement may only exceed DATE if a new report has been made to ORG and the regional director so decides .

Solitary confinement may only exceed DATE from the date of the initial decision if the Minister of ORG so decides on the basis of a reasoned report by the regional director after the regional director has obtained the opinions of ORG and the prison doctor .

The prison governor shall keep a solitary - confinement register for consultation by the administrative and judicial authorities on supervisory visits and inspections . ”

[ Decree no . CARDINAL of DATE , Article CARDINAL , Official Gazette of DATE , and Decree no . CARDINAL of DATE , Article CARDINAL , ORG of DATE ]

“ Solitary confinement shall not constitute a disciplinary measure .

Prisoners in solitary confinement shall be subject to the ordinary prison regime . ”

Extracts from the Circular of CARDINAL DATE implementing the decree amending LAW

“ CARDINAL . Solitary confinement as a precautionary or security measure

Orders for solitary confinement as a precautionary or security measure are made by the prison governor at the prisoner ’s request or on the governor ’s own initiative . Since the governor has sole power to order solitary confinement , he or she will need to take particular care in setting out the reasons .

NORP The need to state reasons

Since the ORG d’Etat ’s PERSON judgment of CARDINAL DATE , the administrative courts have assumed jurisdiction to review the lawfulness of disciplinary decisions ‘ giving cause for complaint’ .

Judicial review has not yet been extended to decisions to place a prisoner in solitary confinement , which continue to be regarded in the most recent decisions as ‘ internal administrative measures’ that are not amenable to review .

The courts consider on the basis of LAW that ‘ solitary confinement does not make conditions of detention worse and is not liable to affect the legal position of the person so held’ ( ORG d’Etat , CARDINAL DATE , PERSON , and PERSON d’Etat , DATE , PERSON ) .

Nature of the reasons

It is not sufficient simply to repeat the succinct ‘ as a precautionary or security measure’ formula used in LAW .

... Orders for solitary confinement as a precautionary or security measure must be based on genuine grounds and objective concordant evidence of a risk of the prisoner causing or being exposed to serious harm .

The reasons must state whether the measure has been taken to avoid the risk of an escape , violence or coercion , concerted action liable to disrupt the prison community , connivance or conspiracy , or to protect the life or physical integrity of individual prisoners or of the person in solitary confinement .

Invalid reasons

An order for solitary confinement can not be made solely for the following reasons .

Nature of the offence

The seriousness of the offence for which the person concerned is being held and the nature of the offence of which he or she is accused can not by themselves justify solitary confinement .

II . PROCEDURE IN SOLITARY CONFINEMENT CASES

Content of the decision

The decision shall be in the form set out on the printed sheet annexed hereto and shall be notified after the hearing . The sheet contains CARDINAL sections , CARDINAL for the reasons and the other for the prisoner ’s observations . Additional observations on an ordinary sheet of paper and any documents that may assist in explaining the reasons may be attached to the decision .

Copies of documents for the authorities

Article D. CARDINAL - CARDINAL , sub - paragraph CARDINAL , of LAW requires the prison governor to inform the regional director and the judge responsible for the execution of sentences of his decision without delay .

A copy of a decision to place a remand prisoner in solitary confinement must also be sent to the judge in charge of the investigation .

Lifting of the measure

Solitary confinement is not intended to continue indefinitely , as it must be justified by factual and legal considerations , which may change or cease to apply .

In view of the harmful effects of prolonged solitary confinement , the prison governor and regional director must closely monitor the length of the measure .

The measure will automatically lapse in the circumstances set out in LAW . Consideration should also be given on the ordinary renewal dates to lifting the measure .

The prisoner must be notified of a decision to lift the measure . If the prisoner has asked to be placed in solitary confinement , his or her observations ( if any ) must be obtained .

Prolongation of the measure

Unless a decision to prolong the measure is made at DATE , it will automatically lapse . ...

Proposals to prolong the measure

The prolongation procedure must be set in motion DATE before the DATE period expires .

Prisoners in solitary confinement must be informed if it is intended to propose prolongation of the measure and , if they so wish , be given TIME in which to prepare their observations , which they may submit at a hearing held for that purpose . They are then notified of the proposal .

No prolongation may be proposed without a prior assessment of the prisoner ’s situation made with the aid , inter alia , of the record of observation of the prisoner in solitary confinement .

If the prison governor considers it necessary to prolong the measure , he or she must compile a file containing :

( i ) The printed proposal form containing a statement of reasons , which must be up to date when the request is made . The form will contain confirmation that the prisoner has been notified of the proposal , the date of the verbal report to ORG and the date of transmission to the regional director .

( ii ) NORP The liaison form .

( iii ) The report on the prisoner ’s behaviour in solitary confinement based , in particular , on the record of observation .

Any report by the medical team or opinion by the doctor will be appended to the proposal file .

NORP The regional director ’s investigation

The file should be sent to ORG DATE before the DATE period expires . ORG will examine the file and , if necessary , request additional documents or information . It should make sure it has a fully up - to - date statement of reasons for the proposal to prolong the measure .

The regional director must decide whether or not to prolong the solitary confinement and send the decision to the prison for notification to the prisoner before the expiry of the DATE period in all cases . The decision shall be reasoned .

If it is decided not to prolong the measure , it will immediately lapse and the prisoner will be returned to the ordinary regime .

The prisoner will be given a copy of the decision to prolong the measure on being notified of it .

The same rules shall apply to the preservation of evidence and the forwarding of copies to the authorities as for the initial decision .

The same procedure shall be followed if prolongation appears necessary at the end of a further DATE period . Regional directors shall consider the reasons for a further extension with particular care . In particular , they must examine whether other types of measure have been considered and satisfy themselves that no such measure would be feasible .

When a decision to prolong solitary confinement has already been taken by a regional director , the measure may be lifted during the statutory periods only by a decision of the same authority , unless it automatically lapses under LAW . In such cases , the prison governor will forward to the regional director a reasoned proposal to lift the measure accompanied , if applicable , by a supporting report . The prison governor will also send the regional director without delay any medical certificates the doctor may have issued together with his opinion on whether any action is called for .

Prolongation after DATE

Solitary confinement should be prolonged after DATE only in exceptional cases . The Minister of ORG has sole decision - making power , in accordance with LAW , sub - paragraph CARDINAL .

Proposals to prolong solitary confinement

The prison governor must send the proposal to prolong solitary confinement to the regional director before DATE to allow ORG and the central authority time to examine it thoroughly .

A doctor ’s opinion must be sought if it is proposed to prolong solitary confinement beyond DATE . If the doctor gives an opinion , it must be set out in writing and forwarded with the proposal . If the doctor does not give an opinion , he or she should initial at least the form containing the proposal .

The prison governor will submit the proposal to ORG for an opinion , which the latter will indicate on the proposal form .

The prison governor should advise the prisoner of his or her intention to propose prolonging the solitary confinement beyond DATE . If the prisoner so wishes , he or she may be given TIME in which to prepare observations to be made at a hearing at the end of the allotted time . The prisoner is then notified of the proposal .

The prison governor must append to the proposal a summary report on the prisoner ’s behaviour since the initial decision was made .

Lastly , the liaison record ( III.CARDINAL ) shall be forwarded with the proposal so that the authority that will take the decision has full details of the chronology of the measure .

NORP The regional director ’s report

The regional director should draw up a report on the basis of the prison governor ’s proposal and give a reasoned opinion on whether the measure should be prolonged beyond DATE .

Before doing so , the regional director may lift the measure if he or she considers that it is no longer warranted or substitute another measure within his or her powers .

He or she may also recommend other measures , such as a transfer .

The file containing the proposal to prolong solitary confinement must be sent to the head office of ORG DATE before the preceding measure expires . The central authority must be given time to examine the file and to seek alternatives .

NORP The decision of the Minister of Justice

The central authority will send the Minister of ORG ’s decision ( which will normally be taken by the director of ORG under delegated authority ) to ORG DATE before DATE of solitary confinement expires so that the prison can be informed in time .

The prisoner should be provided with a copy of the decision and an original should be placed in the file .

A verbal report on the final decision should be made to ORG .

The head office of ORG will retain the power to decide on further DATE extensions beyond DATE . The matter will be referred back to the central authority in accordance with the procedure described in this paragraph DATE before the new period of solitary confinement is due to end .

Apart from the cases of automatic lapse set out in LAW , power to lift the measure after DATE is also vested in the central authority .

PERSON THE SOLITARY CONFINEMENT REGIME

NORP and national recommendations

Following its visit to GPE of DATE , ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment recommended that ‘ a balance [ be struck ] between the requirements of the case and the application of a solitary confinement type regime’ , in view of the harmful consequences that that regime could have on the prisoner . It proposed organising the segregation unit in a way that would give prisoners continued access to better exercise areas and to activities , including outdoor activities .

These recommendations tie in with the findings of the working groups that have been set up by or at the request of ORG .

Implementation of the ordinary prison regime

In accordance with LAW , prisoners in solitary confinement are subject to the ordinary prison regime .

CARDINAL Prisoners must be permitted to make full use of their rights of defence , which are protected by instruments of constitutional or international rank , in accordance with the procedure set out in LAW and the distinction it makes between convicted and remand prisoners . The prohibition on communication referred to in LAW can not apply to communication with lawyers .

CARDINAL The right to relations with members of one ’s family and others are exercised through prison visits . Subject to the arrangements for individual access to the visiting room , there shall be no restrictions on prison visits unless a court has ordered solitary confinement .

There must be no restrictions on the right of prisoners in solitary confinement to send or receive correspondence . However , stricter monitoring of correspondence may be justified by court - imposed imperatives , the prisoner ’s classification as a high - security risk in accordance with Article D. CARDINAL - CARDINAL of LAW , or a recommendation for the prisoner to be placed on suicide watch .

Similarly , ORG rights to make telephone calls in penal establishments in accordance with LAW of LAW are not suspended by solitary confinement .

CARDINAL NORP There is no general restriction on the right of prisoners in solitary confinement to access to news , subject to the normal supervision prisoners receive throughout their term in prison . Prisoners in solitary confinement retain the right to buy newspapers of their choice , or to use a radio or television subject to the usual conditions .

If the library operates a direct - access system , it must arrange special opening TIME for prisoners in solitary confinement or keep a separate stock for the segregation unit .

CARDINAL Religious observance .

Religious observance in the segregation unit shall take place in accordance with the rules set out in ORG D. CARDINAL to D. CARDINAL of LAW . Since prisoners in solitary confinement are unable to attend the services habitually open to all prisoners , they may be authorised to attend special services arranged in agreement with the chaplain .

CARDINAL ORG .

The health of prisoners in solitary confinement is dependent on their being detained in conditions that allow them a healthy lifestyle :

( i ) Cells must receive natural light through a window which also affords adequate ventilation , as required by LAW of LAW .

( ii ) The exercise yard must provide access to the open air . Consideration must be given to allocating specific times for prisoners in solitary confinement to exercise in an open yard . Exercise periods should be for the same length as for ordinary - regime prisoners .

( iii ) Sporting activities should be made available in the segregation unit , for example by the provision of an exercise bike , gym mat or table - tennis table .

Activities in the segregation unit

Although access to communal activities provided for ordinary - regime prisoners is suspended during solitary confinement , prisoners in solitary confinement remain under the ordinary regime and special arrangements should be made within the segregation unit for most activities to continue , allowing prisoners to assemble in small groups at times .

Thus , whenever possible , the prison governor must permit prisoners in solitary confinement to assemble in groups of CARDINAL for exercise or activities . A room , which may be multipurpose ( sport , reading ) should be set aside for this purpose . It is for the prison governor to assess how and when such groups may be organised and to tailor the measure to individuals in the light of the reason for the prisoner ’s placement in solitary confinement , the aim pursued and the character and conduct of the prisoner or prisoners concerned .

Individual educational programmes or distance teaching offered by teachers or instructors should not be discouraged , as they ensure that activities are also directed towards training .

Monitoring of and dialogue with prisoners in solitary confinement

ORG

A record of observation must be compiled for all prisoners in solitary confinement ; it will be supplemented by any relevant comments by duty staff or the persons in charge of the unit on the prisoner ’s behaviour in solitary confinement .

The record of observation acts as an early warning system if it appears that solitary confinement is having harmful effects on the prisoner .

Staff should consult it regularly and in any event if it is intended to propose prolonging the measure .

A summary of the record of observation will be sent to the regional director and the central authority with the proposal to prolong the measure or in the event of an internal appeal by the prisoner against the original decision or a decision to prolong the measure .

All prisons shall be responsible for creating a record of observation meeting the stated objective or , if one already exists , improving it .

Dialogue

In order to avoid excessive social isolation , it is essential to maintain contact and encourage exchanges between staff and prisoners in solitary confinement . Not only does this reduce the degree of isolation , especially for prisoners who do not receive visits , it also assists in monitoring the prisoner ’s character .

For the same reasons , senior prison officers and socio - educational staff should seek to meet prisoners in solitary confinement at least as regularly as they do ordinary prisoners . ”

CARDINAL . Case - law of the ORG d’Etat

In a judgment of DATE , the ORG d’Etat departed from its previous case - law when it held :

“ The aforementioned provisions and the evidence before the tribunal of fact show that it is in the very nature of solitary confinement to deprive persons subjected to it of access to the sporting , cultural , teaching and training activities and paid work that are available to other prisoners collectively . Such a measure may be imposed for a period of DATE and may be prolonged . In these circumstances , even though LAW states that solitary confinement is not a disciplinary measure , as the prisoners concerned are subject to the ordinary prison regime , a decision to place a prisoner in solitary confinement against his or her wishes will , in view of the effects it has on the conditions of detention , be amenable to judicial review . Accordingly , the Minister of ORG ’s submission that ORG erred in law in declaring admissible an application by Mr X for judicial review of a decision by the governor of FAC to place him in solitary confinement is unfounded .

ORG did not err in law when it held that a decision to place a prisoner in solitary confinement was CARDINAL of the decisions for which the first section of the LAW DATE requires reasons to be stated . In finding that insufficient reasons had been stated in the impugned decision , ORG reached a decision in its unfettered discretion which , in the absence of any distortion of the facts , can not be challenged in this ORG .

It follows from the foregoing that the Minister of ORG is not entitled to make an order setting aside the impugned judgment .

It is appropriate in the circumstances of this case to make an order requiring the ORG to pay PERSON the sum of MONEY he claimed under Article L. CARDINAL - CARDINAL of FAC . ”

Extracts from the reports of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) and the responses of the government of GPE ( unofficial translation )

Report on the visit of CARDINAL to DATE

“ CARDINAL . The ORG pays particular attention to prisoners held under conditions akin to solitary confinement . It reiterates that the principle of proportionality requires a balance be struck between the requirements of the case and the application of a solitary - confinement regime , which is a step that can have very harmful consequences for the person concerned . Solitary confinement can , in certain circumstances , amount to inhuman and degrading treatment . In any event , it should be as short as possible .

The delegation visited the segregation units in ... and in the remand prisons of ORG ... It met a number of prisoners who had been held in solitary confinement for long , and in some instances very long , periods .

... Furthermore , the solitary - confinement cells in GPE - La Santé Prison could be described as reasonable ( cf . CARDINAL ) .

As regards the prison regime , which according to LAW is an ordinary regime , the delegation found that the activities remained limited ( reading , television , and in some instances in - cell educational or training activities ) . ... There continued to be little human contact and this took the form of any visits from close relatives or other authorised persons ( such as religious representatives ) and some daily contact with warders .

As regards outdoor exercise , the prison authorities said that DATE walk was authorised DATE , although conditions were less than satisfactory .

The ORG pointed out in its report on its first visit that particular attention had to be paid to the mental and physical condition of prisoners in solitary confinement . In paragraph CARDINAL of their interim report , the NORP authorities indicated that prisoners in solitary confinement were examined twice a week by doctors and that a doctor was called out whenever the condition of a prisoner in solitary confinement demanded . Doctors were required to inform the prison governor in writing if they considered the prisoner ’s physical or mental health to be at risk .

In that connection , the NORP authorities informed the delegation that a draft decree ( which is due to come into force on DATE ) would establish new rules for gaining access to a doctor and assessing a prisoner ’s condition .

As to the other safeguards , it seemed to the delegation from an examination of the relevant files that the procedure for prolonging solitary confinement was rather summary . The manner of its implementation also appears to vary from CARDINAL region to another . ... At FAC , the delegation heard allegations by prisoners in solitary confinement that this was no longer the case . These were credible allegations , since , unlike in GPE , the delegation found no trace of annotations or headings indicating that prisoners had been informed of the proposal to prolong their solitary confinement . The delegation found virtually no evidence in the files it examined of reports being sent to the commission responsible for the execution of sentences or of the commission issuing opinions as required by the relevant provisions of LAW . Furthermore , the only medical certificates relating to the renewal procedure seen by the delegation were stereotyped and extremely brief .

In the light of the foregoing , the ORG recommends that the NORP authorities :

( i ) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact ;

( ii ) NORP ensure that solitary confinement is as short as possible ; in that connection , the DATE review of the need for solitary confinement should entail a full assessment based , if appropriate , on a medical and social report ;

( iii ) ensure that all prisoners whose solitary confinement is prolonged are informed in writing of the reasons for the measure ( it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds ) .

The ORG would also like to know whether the decree announced by the NORP authorities has come into force and to receive a copy if it has . ”

Responses of the government of GPE to the DATE report

Observations ( interim report )

“ ( i ) review the arrangements for solitary confinement with a view to providing prisoners with a wider range of activities and ensuring appropriate human contact ( paragraph CARDINAL )

The rules governing solitary confinement are being revised . Articles D. CARDINAL - CARDINAL and NORP CARDINAL of the Code of Criminal Procedure and the circular of CARDINAL DATE , which are currently in force , need supplementing in order to improve the procedure and to limit the duration of the measure .

Draft Article D. CARDINAL - CARDINAL accordingly places particular emphasis on the need for the medical supervision of prisoners in the segregation unit . It also makes the director of ORG responsible for deciding whether to prolong solitary confinement that has exceeded DATE .

The entry into force of this LAW , which will be included in a vast decree amending more than CARDINAL Articles of LAW , has been delayed , as the decree is part of a governmental programme of ORG reform .

It is intended that a draft circular will be issued when the decree comes into force . It will emphasise that prisoners in solitary confinement are subject to the ordinary prison regime and will give instructions for continued dialogue between staff and prisoners in solitary confinement , in particular through the organisation of regular meetings . The provision of individual teaching or training programmes will also be recommended .

( ii ) NORP ensure that solitary confinement is as short as possible ; in that connection , the DATE review of the need for solitary confinement should entail a full assessment based , if appropriate , on a medical and social report ( paragraph CARDINAL )

A draft circular is being prepared .

( iii ) ensure that all prisoners whose solitary confinement is renewed are informed in writing of the reasons for the measure ( it being understood that there is no obligation to communicate data which it would be reasonable to exclude on security grounds ) ( paragraph CARDINAL )

A draft circular is being prepared . ”

Follow - up report

The draft decree referred to in the interim report , which brings the regulatory section of LAW into line with a number of statutes that are already in force , is in the process of promulgation .

It will amend , inter alia , Article D. CARDINAL - CARDINAL of LAW by making the director of ORG responsible for deciding whether to prolong solitary confinement that has exceeded DATE . It will redirect the focus of medical supervision to its exclusive role of providing prisoner health care .

Pursuant to this provision , a draft circular has been drawn up confirming that prisoners in solitary confinement are subject to the ordinary prison regime , which entails , inter alia :

( a ) full compliance with ORG ordinary rights to relations with their family , representatives and others ;

( b ) DATE continued dialogue between staff and the prisoner in solitary confinement through regular meetings ;

( c ) NORP the organisation , to the extent possible , of special activities in the segregation unit and of individual teaching and training programmes .

This draft was prepared after wide consultation of decentralised services . An information and exchange procedure on the issue has thus already been set in motion and will continue with the distribution of the circular , which could be available immediately after publication of the aforementioned decree .

The draft circular establishes a mechanism for controlling the length of solitary - confinement measures : before a decision to prolong the measure beyond DATE can be taken , the regional director must examine an observation report from the prison governor based , in particular , on his knowledge of the prisoner concerned and the information provided by the various prison departments on the basis of the personal record of observation .

Any event with suspensive effect that either entails release or is for a period exceeding DATE will result in the lapse of the solitary - confinement measure and the prisoner ’s return to ordinary detention .

The draft circular introduces an improved system for the provision of reasons and written notification of decisions to place a prisoner in solitary confinement . The prison governor will not , however , be required to disclose information to a prisoner that may put people or the prison at risk ; this has been accepted by the ORG . ”

report on the visit from CARDINAL to CARDINAL

“ CARDINAL . In its reports of DATE the ORG stressed that the principle of proportionality required that a balance be struck between the requirements of the case and the application of a solitary confinement type regime , which is a step that can have very harmful consequences for the person concerned . Solitary confinement can , in certain circumstances , amount to inhuman and degrading treatment . In any event , it should be as short as possible . Following its visits , the ORG advised of its concerns regarding various aspects of solitary confinement in GPE ( cf . paragraphs CARDINAL et seq . , and CARDINAL - CARDINAL of the reports ) . Subsequently , in a circular dated DATE , the Minister of ORG issued instructions concerning , inter alia , the grounds on which prisoners could be placed in solitary confinement , the procedure to be followed and the regime for prisoners in solitary confinement . These instructions address some of the concerns expressed by the ORG in its reports on previous visits .

Nevertheless , during its visits the ORG delegation found serious shortcomings in the manner in which the earlier recommendations of the ORG and the ministerial instructions had been implemented in practice .

The ORG has serious reservations about the situation of a number of prisoners in solitary confinement for administrative reasons that the delegation met during its visit . Its reservations concern both the length of the confinement ( which in some instances had been for DATE on end ) and the highly restrictive regime to which such prisoners are subject ( total lack of structured or communal activities ) .

NORP The physical conditions of detention of prisoners placed in solitary confinement for administrative reasons were globally acceptable . However , the cells accommodating such prisoners at FAC had only limited access to natural light . In addition , in the CARDINAL institutions visited , the exercise yards – which were often also used by prisoners in solitary confinement for disciplinary reasons – were uninviting .

NORP The ministerial instructions state : ‘ The essential features of the ordinary prison regime must , so far as possible and subject to practical constraints , be retained in the segregation unit’ ( point CARDINAL ) . They further state , inter alia : ‘ there shall be no restrictions on prison ORG ( point CARDINAL ) and ‘ prisoners in solitary confinement remain under the ordinary regime and special arrangements should be made within the segregation unit for most activities to continue , allowing prisoners to assemble in small groups at FAC , that ‘ it is for the prison governor to assess how and when such groups may be organised’ and ‘ individual educational programmes or distance teaching offered by teachers or instructors should not be ORG ( point CARDINAL ) . The instructions further require increased surveillance of prisoners and specify : ‘ in order to avoid excessive social isolation , it is essential to maintain contact and encourage exchanges between staff and prisoners in solitary confinement’ ( point CARDINAL ) .

From the information obtained by the delegation , it would seem that , with the odd exception ( for instance as regards contact with the outside world ) , the vast majority of the aforementioned requirements have not been complied with . For example , the only establishment which allowed prisoners in solitary confinement for administrative reasons to associate was ORG and even there association was restricted ( to exercise outdoors and in the fitness room ) .

The ORG recommends that the authorities take measures without delay to give full effect to the Minister of ORG ’s instructions of DATE concerning solitary confinement for administrative reasons – under paragraphs CARDINAL.CARDINAL.CARDINAL , CARDINAL and CARDINAL in particular .

The ORG also has reservations about the effectiveness of the procedural safeguards on solitary confinement for administrative reasons . The files that have been examined show that it is sometimes used as an alternative to solitary confinement as a disciplinary measure ( for instance , in CARDINAL case , the measure was imposed for : ‘ serious damage to property belonging to the prison that put prison security at ORG ) or to prolong such a measure and that the reasons stated for putting a prisoner in solitary confinement were often stereotyped ( ‘ to maintain order in the GPE or ‘ risk of ORG ) . In CARDINAL case the prisoner had been held in solitary confinement since DATE ‘ because of the nature of the offences of which he had been convicted’ .

In summary , it would appear that the ministerial instructions , namely ‘ Orders for solitary confinement as a precautionary or security measure must be based on genuine grounds and objective concordant evidence of a risk of the prisoner causing or being exposed to serious harm’ , are not always fully complied with ( cf . point CARDINAL ) .

The ORG recommends that the NORP authorities carry out a case - by - case review of compliance with the instructions issued in DATE with regard to solitary confinement for administrative reasons .

Lastly , the ORG understands that the issue of the nature and extent of available remedies has not yet been resolved ( cf . paragraph CARDINAL of the report on the DATE visit ) . In practice this means that prisoners in solitary confinement currently have no real means of challenging decisions to place them in solitary confinement or to renew such a measure before an independent authority .

The ORG recommends the reinforcement of the safeguards provided for prisoners in solitary confinement in order to ensure they have an effective remedy before an independent authority , preferably a judge . Indeed , that is the spirit of the various proposals that are currently pending before the NORP authorities ( for instance , the PERSON report and the report of the ORG investigation ) . ”

Response of the government of GPE

“ ( i ) take measures without delay to give full effect to the Minister of ORG ’s instructions of DATE concerning solitary confinement for administrative reasons – under paragraphs CARDINAL.CARDINAL.CARDINAL , CARDINAL and CARDINAL in particular ( paragraph CARDINAL )

( ii ) carry out a case - by - case review of compliance with the instructions issued in DATE with regard to solitary confinement for administrative reasons ( paragraph CARDINAL )

Power to take decisions on solitary confinement is vested in the Minister of ORG if the confinement has exceeded one year .

There are currently CARDINAL prisoners who have been in solitary confinement for DATE . Of these , CARDINAL are in prisons for convicted prisoners and CARDINAL in prisons for remand prisoners .

The majority of these prisoners were placed in solitary confinement at their own request , either on account of the offence for which they were imprisoned , or of their occupation before they were imprisoned .

Improvements are being made to the segregation units to make them compliant with the circular of DATE . The prisons to be built as part of the ‘ CARDINAL ORG will be equipped with segregation units that allow prisoners to enjoy all the advantages set out in the aforementioned circular .

Furthermore , in accordance with the circular of DATE on solitary confinement , it is the regional director of ORG or the central authority who is responsible for reviewing the reasons given by the prison governor for placing a prisoner in solitary confinement . In addition , the prison inspectorate verifies compliance with these obligations when carrying out prison visits .

( iii ) reinforce the safeguards provided for prisoners in solitary confinement to ensure they have an effective remedy before an independent authority , preferably a judge ( paragraph CARDINAL )

Solitary confinement is one of the issues being considered in connection with the proposed legislation on prisons . ”

Extracts from the Guidelines on human rights and the fight against terrorism , adopted by ORG DATE

“ III . Lawfulness of anti - terrorist measures

All measures taken by GPE to combat terrorism must be lawful .

When a measure restricts human rights , restrictions must be defined as precisely as possible and be necessary and proportionate to the aim pursued .

IV . Absolute prohibition of torture

The use of torture or of inhuman or degrading treatment or punishment is absolutely prohibited , in all circumstances , and in particular during the arrest , questioning and detention of a person suspected of or convicted of terrorist activities , irrespective of the nature of the acts that the person is suspected of or for which he / she was convicted .

ORG . Detention

A person deprived of his / her liberty for terrorist activities must in all circumstances be treated with due respect for human dignity .

NORP The imperatives of the fight against terrorism may nevertheless require that a person deprived of his / her liberty for terrorist activities be submitted to more severe restrictions than those applied to other prisoners , in particular with regard to :

( i ) the regulations concerning communications and surveillance of correspondence , including that between counsel and his / her client ;

( ii ) placing persons deprived of their liberty for terrorist activities in specially secured quarters ;

( iii ) the separation of such persons within a prison or among different prisons ,

on condition that the measure taken is proportionate to the aim to be achieved . ”

CARDINAL . Extracts from Recommendation Rec(CARDINAL)CARDINAL of ORG to member States on ORG adopted on DATE

“ ORG , under the terms of Article CARDINAL.b of the Statute of the Council of Europe ,

Having regard to LAW and the case - law of ORG ;

Having regard also to the work carried out by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and in particular the standards it has developed in its general reports ;

Reiterating that no one shall be deprived of liberty save as a measure of last resort and in accordance with a procedure prescribed by law ;

Stressing that the enforcement of custodial sentences and the treatment of prisoners necessitate taking account of the requirements of safety , security and discipline while also ensuring prison conditions which do not infringe human dignity and which offer meaningful occupational activities and treatment programmes to inmates , thus preparing them for their reintegration into society ;

Recommends that governments of member PERSON :

– be guided in their legislation , policies and practice by the rules contained in the appendix to this recommendation , which replaces Recommendation No . R ( CARDINAL ) CARDINAL of ORG on ORG :

Appendix to Recommendation Rec(CARDINAL)CARDINAL

Basic principles

All persons deprived of their liberty shall be treated with respect for their human rights .

Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody .

Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed .

CARDINAL NORP In all buildings where prisoners are required to live , work or congregate :

a. the windows shall be large enough to enable the prisoners to read or work by natural light in normal conditions and shall allow the entrance of fresh air except where there is an adequate air conditioning system ;

b. artificial light shall satisfy recognised technical standards ; ...

CARDINAL Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense .

CARDINAL ORG and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential .

CARDINAL Prisoners shall be allowed to communicate as often as possible by letter , telephone or other forms of communication with their families , other persons and representatives of outside organisations and to receive visits from these persons .

CARDINAL ORG and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations , maintenance of good order , safety and security , prevention of criminal offences and protection of victims of crime , but such restrictions , including specific restrictions ordered by a judicial authority , shall nevertheless allow an acceptable minimum level of contact .

CARDINAL NORP The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible .

CARDINAL Prisoners shall be allowed to keep themselves informed regularly of public affairs by subscribing to and reading newspapers , periodicals and other publications and by listening to radio or television transmissions unless there is a specific prohibition for a specified period by a judicial authority in an individual case .

CARDINAL NORP The regime provided for all prisoners shall offer a balanced programme of activities .

CARDINAL NORP This regime shall allow all prisoners to spend TIME a day outside their cells as are necessary for an adequate level of human and social interaction .

CARDINAL NORP This regime shall also provide for the welfare needs of prisoners .

CARDINAL Every prisoner shall be provided with the opportunity of TIME of exercise every day in the open air , if the weather permits .

CARDINAL When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise .

CARDINAL NORP Properly organised activities to promote physical fitness and provide for adequate exercise and recreational opportunities shall form an integral part of prison regimes .

CARDINAL ORG authorities shall facilitate such activities by providing appropriate installations and equipment .

CARDINAL ORG authorities shall make arrangements to organise special activities for those prisoners who need them .

CARDINAL LOC opportunities , which include sport , games , cultural activities , hobbies and other leisure pursuits , shall be provided and , as far as possible , prisoners shall be allowed to organise them .

CARDINAL ORG shall be allowed to associate with each other during exercise and in order to take part in recreational activities .

CARDINAL NORP The prison regime shall be organised so far as is practicable to allow prisoners to practise their religion and follow their beliefs , to attend services or meetings led by approved representatives of such religion or beliefs , to receive visits in private from such representatives of their religion or beliefs and to have in their possession books or literature relating to their religion or beliefs .

CARDINAL ORG who are foreign nationals shall be informed , without delay , of their right to request contact and be allowed reasonable facilities to communicate with the diplomatic or consular representative of their ORG .

Prison authorities shall safeguard the health of all prisoners in their care .

CARDINAL ORG services in prison shall be organised in close relation with the general health administration of the community or nation .

CARDINAL ORG services in prison shall seek to detect and treat physical or mental illnesses or defects from which prisoners may suffer .

CARDINAL NORP All necessary medical , surgical and psychiatric services including those available in the community shall be provided to the prisoner for that purpose .

CARDINAL NORP The medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to the health of prisoners held under conditions of solitary confinement , shall visit such prisoners DATE , and shall provide them with prompt medical assistance and treatment at the request of such prisoners or the prison staff .

CARDINAL NORP The medical practitioner shall report to the director whenever it is considered that a prisoner ’s physical or mental health is being put seriously at risk by continued imprisonment or by any condition of imprisonment , including conditions of solitary confinement .

CARDINAL The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody .

CARDINAL LOC security which is provided by physical barriers and other technical means shall be complemented by the dynamic security provided by an alert staff who know the prisoners who are under their control .

CARDINAL NORP As soon as possible after admission , prisoners shall be assessed to determine :

a. the risk that they would present to the community if they were to escape ;

b. the risk that they will try to escape either on their own or with external assistance .

CARDINAL Each prisoner shall then be held in security conditions appropriate to these levels of risk .

CARDINAL The level of security necessary shall be reviewed at regular intervals throughout a person ’s imprisonment .

Safety

CARDINAL.CARDINAL As soon as possible after admission , prisoners shall be assessed to determine whether they pose a safety risk to other prisoners , prison staff or other persons working in or visiting prison or whether they are likely to harm themselves .

CARDINAL Procedures shall be in place to ensure the safety of prisoners , prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety .

CARDINAL LOC high security or safety measures shall only be applied in exceptional circumstances .

CARDINAL.CARDINAL There shall be clear procedures to be followed when such measures are to be applied to any prisoner .

CARDINAL NORP The nature of any such measures , their duration and the grounds on which they may be applied shall be determined by national law .

CARDINAL NORP The application of the measures in each case shall be approved by the competent authority for a specified period of time .

CARDINAL NORP Any decision to extend the approved period of time shall be subject to a new approval by the competent authority .

CARDINAL LOC measures shall be applied to individuals and not to groups of prisoners .

CARDINAL.CARDINAL Any prisoner subjected to such measures shall have a right of complaint in the terms set out in Rule DATE .

CARDINAL ORG , individually or as a group , shall have ample opportunity to make requests or complaints to the director of the prison or to any other competent authority .

CARDINAL If a request is denied or a complaint is rejected , reasons shall be provided to the prisoner and the prisoner shall have the right to appeal to an independent authority .

Extracts from the report by Mr PERSON , Commissioner for Human Rights of ORG , on the effective respect for human rights in GPE following his visit from DATE ( published on DATE )

“ CARDINAL . ... At the same time , another administrative procedure , which comes fully under the responsibility of the prison administration , is totally lacking in transparency and calls for rapid action on the part of the legislature . This is the procedure for placing prisoners in solitary confinement .

When CARDINAL visits prisons , and more specifically the disciplinary blocks , one can usually see the solitary confinement blocks close by . Every prison has them . Under the law , any prisoner may be placed in solitary confinement either at his / her own request or as a precautionary or security measure . In some cases , this regime is used to remove prisoners who are troublesome , under suspicion or ringleaders from the other inmates without their having committed a disciplinary offence .

According to the legislation currently in force , solitary confinement is not a disciplinary measure . Prisoners in solitary confinement must be subject to the ordinary prison regime . However , they must not have contact with other prisoners , except by express decision of the prison director , to take part in CARDINAL - off activities with other solitary confinement prisoners . The movements of solitary confinement prisoners within the prison are organised in such a way that they do not meet anyone on their way . In a few establishments , solitary confinement prisoners may engage in a gainful occupation by doing work in their cells . Usually , however , they do not have access to any gainful activity and are entirely dependent on any funds which may be sent to them from outside . All solitary confinement prisoners may , however , receive visits and exchange correspondence in the normal way .

There is also a stricter solitary confinement regime for prisoners regarded as particularly dangerous ‘ because of [ their ] involvement in organised crime or in a terrorist movement or [ their ] legal and criminal background’ . It is for the prison director to determine which solitary confinement prisoners fall within this category . They are subject to particular security measures . Some are regularly transferred from CARDINAL prison to another , DATE . They remain constantly in solitary confinement and never mix with other prisoners .

Solitary confinement is usually ordered by the prison director . It may also be ordered by an investigating judge in the course of an investigation . Here I should like to dwell on the administrative procedure for which the prison director is responsible , because I feel that it raises a number of issues likely to undermine respect for the fundamental rights of persons placed in solitary confinement .

It emerged from most of my discussions with prisoners , lawyers , representatives of the prison administration and voluntary organisations that the procedure for placing prisoners in solitary confinement depends entirely on an administrative decision by the prison director . There are no legislative provisions or regulations governing this procedure which guarantee the rights of those subject to it , particularly by ensuring that they are given a hearing and the assistance of a lawyer .

In principle , there is general legislation which should govern this situation . This is LAW on the rights of citizens in their dealings with the public administration . Under this provision , representatives of government bodies who intend to take an administrative decision against an individual citizen must in principle notify the person concerned in writing with sufficient advance notice , specifying the reasons for the procedure . The person in question must have the opportunity to submit written observations or , if he / she so wishes , oral observations and has the right to be assisted by a lawyer or a representative ( approved or not ) . He / she may also have access to his / her file .

Clearly , the decision to place a prisoner in solitary confinement would normally be covered by this . However , we were told that this legislation has remained inoperative where solitary confinement is concerned . At present , therefore , the prison director retains sole discretion where solitary confinement is concerned .

According to what we heard in the course of our discussions , at present the prisoners concerned are usually informed immediately before the hearing of the intention to place them in solitary confinement . They usually only have TIME in which to prepare their observations before being given a hearing , without any legal assistance , by the prison director . I believe that , as things stand , this procedure must be described as being contrary to the recommendations of ORG ( ORG ) . Furthermore , the purely administrative and non - adversarial nature of this procedure greatly increase the risk of abuses of ORG rights . I therefore feel that there is currently a real need to introduce legislation or regulations bringing this procedure into line with NORP standards .

Furthermore , it is particularly disturbing to see that solitary confinement may be ordered for an indefinite period , despite its frequently harmful effects on the mental state of the persons subjected to it . The initial period of solitary confinement ordered by the prison director may not exceed DATE . It may be extended beyond that period only after a report to ORG and following a decision by the regional director of prisons . In exceptional cases , solitary confinement may be extended beyond DATE following an initial decision by the Minister for ORG . In such cases , the prison director compiles a file including , among other things , the opinion of the prison doctor and of ORG . The minister is responsible for subsequent extensions , for DATE at a time , in accordance with the same procedure .

As may be seen , this procedure is entirely administrative . At present , there is no judicial involvement whatsoever . Yet it is a particularly serious measure , because , although it is not recognised as punishment , the solitary confinement regime imposes significant material restrictions on prisoners’ rights , not to mention its psychological impact . During the visit , I had the opportunity to talk with persons placed in solitary confinement . Some complained about the harshness of their living conditions . According to them , being unable to communicate with anyone for long periods , sometimes well in excess of DATE , is hard to bear . Prisoners placed in solitary confinement have no effective administrative remedy at their disposal , and most of those I spoke to regard solitary confinement as a disguised disciplinary punishment . In the course of the visit I met people who had been in total solitary confinement for DATE .

It is difficult not to agree with them when you see some of the restrictions placed on solitary confinement prisoners . In view of the fact that CARDINAL of the requirements of the solitary confinement regime is that the prisoners concerned should have no contact with other prisoners , it is very difficult to allow them to exercise the rights vested in all prisoners not subject to a disciplinary punishment , which should clearly be the case for those in solitary confinement . For example , to allow them to use the library or a sports hall , care must be taken to ensure that no one else enters these LOC at the same time . As we know , owing to prison overcrowding , it is already quite difficult to ensure access for ordinary prisoners to these services . Most of those I spoke to therefore complained that it was impossible for them to exercise the rights to which they should normally be entitled . The same applies to the possibility of engaging in a gainful occupation . In theory , prisoners in solitary confinement are entitled to that , but in practice they may only do so inside their own cell , which is highly problematical in view of the scarcity of work opportunities in general .

Lastly , the exercise areas available to this category of prisoners are usually the same as those used by the prisoners in the disciplinary block . We visited CARDINAL such area at ORG short - stay prison . It is located on the roof of CARDINAL of the prison buildings , closed in by concrete walls on all sides and covered by wire netting . It is so small that it is more a room in the open air than anything else .

I should like to stress that we are talking here about people who are not subject to a disciplinary measure . Furthermore , the fact that a person is left deprived of the rights secured to every prisoner is purely the result of an administrative decision against which it is difficult to appeal . I therefore call on the NORP authorities to take rapid action to bring solitary confinement into line with NORP standards , in particular those upheld by the ORG . I think there is a need for legislative provisions or regulations to govern the solitary - confinement procedure . The adversarial system already introduced for disciplinary punishments should apply to the solitary - confinement procedure . Lastly , I think it would be in keeping with the spirit of the principle of legal certainty if a judicial body were henceforth able to participate in the procedure , for example the judge responsible for sentence enforcement .

Furthermore , without waiting for legislative reform , the authorities should act to ensure that prisoners in solitary confinement are able to participate in organised activities , particularly as regards work , culture and sports . Their walks and outdoor sports activities should be organised as soon as possible in appropriate places intended for the prison population as a whole , and not for prisoners being held in disciplinary cells . Excluding prisoners from these activities amounts to a disguised punishment . Such changes are bound to lighten the already quite heavy atmosphere which I found in the places of detention visited .


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) are represented by their Agent , PERSON .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE the applicant bought a flat belonging to a certain PERSON For the seller ’s part , the contract was signed by a certain PERSON acting as ORG agent .

On DATE I. instituted proceedings in ORG of Kyiv ( the “ PERSON court ” ) against the applicant seeking invalidation of the above contract of sale , alleging that it had been concluded without his knowledge and against his will . The applicant , in his turn , lodged a counter - claim for eviction of NORP from the flat .

In a judgment of DATE the court found for I. On DATE ORG ( the “ GPE court ” ) upheld that judgment .

On DATE the Deputy President of ORG , following the applicant ’s request , lodged a protest with the ORG of the GPE court , seeking initiation of supervisory review proceedings in the case . On DATE the ORG allowed the protest , quashed the decisions of DATE and DATE , and remitted the case for fresh consideration .

On DATE the GPE court found for PERSON By a ruling of CARDINAL DATE it rejected the applicant ’s objections as to the accuracy of the TIME of the court hearings .

On DATE the Deputy Prosecutor of GPE , following the applicant ’s request , lodged a protest with the ORG of the GPE court , seeking initiation of supervisory review proceedings in the case . It remains unknown whether the ORG considered the merits of the protest .

On DATE the GPE court quashed the ruling of CARDINAL DATE in the light of unspecified newly discovered circumstances , and accepted the applicant ’s objections to the TIME of the court hearings , which had previously been rejected . It also quashed the judgment of DATE .

On DATE the GPE court granted the applicant ’s counterclaim and ordered ORG eviction from the flat .

On DATE the court adopted a supplementary decision by which it rejected the applicant ’s claim seeking to invalidate ORG ’s ownership certificate received in DATE .

On DATE , the court referred the applicant ’s criminal complaint against ORG to the prosecution .

On DATE the GPE court upheld the judgment of CARDINAL October CARDINAL , but quashed the ruling of CARDINAL DATE and partially amended the supplementary decision adopted on DATE .

On DATE I. was evicted from the disputed flat .

On DATE the Chairman of the NORP court lodged a supervisory review protest with the same court , seeking re - examination of the case . He submitted , inter alia , that the courts had failed to give due regard to ORG ’s references to the ongoing criminal investigations into the matter .

On DATE the applicant sold the flat to a certain PERSON

On DATE the Presidium of the GPE court allowed the above supervisory review protest and quashed the decisions of CARDINAL DATE and DATE , remitting the case to the GPE court for further consideration .

On DATE a CARDINAL - judge panel of ORG rejected the applicant ’s appeal in cassation against the above ruling of the ORG of the GPE court .

On DATE the applicant unsuccessfully requested ORG ( “ ORG ” ) , which was examining the case in the first instance , to suspend the proceedings pending the outcome of the criminal investigation .

In a judgment of DATE ORG decided in the applicant ’s favour .

On DATE ORG upheld the judgment .

The relevant domestic law is stated in the ORG ’s partial decision in the present case adopted on DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens

The applicant was born in DATE and lives in PERSON .

The applicant was born with congenital facial injury and was diagnosed with a “ midline cranial cleft ” . DATE she repeatedly underwent surgery in a clinic in GPE , following which her cranial disorders were mostly cured . However , owing to the extensive surgery , the applicant developed a mental illness . Since then she has needed regular supervision in GPE clinic .

NORP In DATE the applicant ’s father applied to GPE of GPE ( “ the ORG ” ) , seeking to have her deprived of legal capacity on the ground that she suffered from serious mental illness .

Following a request by ORG , on DATE a forensic psychiatric expert issued an opinion stating that the applicant suffered from a chronic mental illness , namely paranoid schizophrenia , which prevented her from comprehending and controlling her actions .

On DATE the ORG deprived the applicant of her legal capacity . The decision was not appealed against and became final .

On DATE the applicant ’s sister was assigned as the applicant ’s guardian ( опікун ) .

Gradually , the applicant ’s mental health improved , so that on DATE she took up a position at a local factory .

NORP In DATE the applicant ’s guardian applied to ORG for restoration of the applicant ’s legal capacity . However , on DATE the application was dismissed without being considered on the merits owing to the guardian ’s repeated failure to appear in court .

On DATE the applicant applied on her own to ORG , seeking restoration of her legal capacity . She specified that LAW , which did not provide for the right for an incapacitated person to submit such an application , was not compatible with international legal standards and was discriminatory .

On DATE ORG returned the application to the applicant without considering it on the merits , noting that , by virtue of LAW and LAW , the applicant was not entitled to submit such an application .

On DATE the court of appeal dismissed the applicant ’s appeal against the decision of CARDINAL DATE noting that LAW did not provide the applicant with the right to lodge an application for restoration of her legal capacity . ORG had therefore lawfully returned the application without considering it on the merits , as required by LAW . On DATE the court of cassation dismissed as unfounded the applicant ’s appeal on points of law .

Article CARDINAL of the Code provides that a guardian is obliged to take measures for the protection of the civil rights and interests of the person who is under his or her guardianship .

Article CARDINAL § CARDINAL of the LAW provides that a court can not accept a claim for consideration on the merits if it has been submitted by a person deprived of legal capacity .

Article CARDINAL § CARDINAL of the LAW provides that a court decision declaring a physical person entirely incapable may be quashed and the legal capacity of that person may be restored by another court decision provided that the person has been cured or his or her mental state has significantly improved . Such a decision is to be taken upon an application submitted by the guardian or the guardianship authority ( орган опіки та піклування ) and must be supported by relevant conclusions by a forensic psychiatric expert .

This Order requires the guardianship authorities , among other things , to supervise the activities of guardians and to take measures for the protection of the rights of persons who have been placed under guardianship .