Kudla v. Poland, a step towards a common European law on detention

Everywhere in Europe, the demand for justice from inside prisons claims the principles laid down by the Court in Strasbourg. The fact that these principles now constitute a common horizon for defending the rights of detainees, over and above the variety of penitentiary systems and the diversity of legal traditions, is sufficient to demonstrate the considerable importance of this construction of case law.

Read here the general presentation of the project, its stakes and the objectives pursued by its promoters.

Through the Kudla v. Poland, ruling handed down by the Grand Chamber on 26 October 2000, the European Court affirmed for the first time that article 3 of the Convention guarantees the right for any prisoner to be “detained in conditions which are compatible with respect for his human dignity”. By so doing, the European judges placed States under an obligation to ensure the health and well-being of prisoners. This requirement is combined with a prohibition for authorities to submit detainees to humiliating measures or measures that are not justified by a convincing security imperative.

In its ruling, the Court “wrote an article 3 bis to the Convention” specifically for detainees, to translate the now classic phrase of eminent European law specialist, Frédéric Sudre. The legal scope of the principle of a right to dignified conditions of detention initially went almost unnoticed, but was progressively revealed through rulings handed down by the Court in penitentiary matters.

Protagonists of the case and key witnesses remember here the conditions of the adoption of the Kudla ruling, by exposing the reasoning and the manner in which it fed into subsequent case law for the European Court of Human Rights on prisons. Béatrice Pastre-Belda, specialist in European case law in penitentiary cases, also analyses for us the techniques applied by the European Court of Human Rights to protect the rights of detainees.

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What does it mean for detainees to be able to invoke the European Convention on Human Rights, if necessary in court, against the prison authorities? Answering this question implies measuring the extent to which the logic of the law clashes head-on with the rationalities of the prison, whether in terms of the primacy given to security, the secrecy in which authority is usually exercised or the asymmetry of social relations imposed by discipline. It also involves probing the capacity of law to overcome the historical inertia of prison institutions.

Four former detainees, who are still involved in defending the cause of prisoners in Russia, France and Bulgaria, give an account of the importance of the law to keep dignity in detention, but also of its very mitigated effects behind bars.

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The Court’s interpretation and application of the Convention in penitentiary matters over the last twenty years has been greatly influenced by the doctrine of the European Committee for the Prevention of Torture (CPT). This body is tasked with carrying out inspections of all the places where people are deprived of their liberty by a public authority, to prevent any inhuman or degrading treatment. Beyond the recommendations contained in the reports that the CPT drafts after each of its inspections in the States of the Council of Europe, which lay down the doctrine on the subjects treated, it regularly sets general non-mandatory standards that establish the guidelines for the operation of penitentiary systems, which are regularly revised.

In an interview, Mykola Gnatovskyy, President of the CPT, gives his point of view on the crucial role played by the European Court of Human Rights in protecting detainees across the continent, on the relationship it has with the CPT, and on how the bodies of the Convention and the CPT can act to try to resolve the nagging issue of rulings that remain unenforced in the penitentiary field.

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If we put the case law turning point of the 2000s in a historical perspective we must place these developments as part of a movement of reform that came about at the same time as prisons emerged as a form of punishment. In other words, the recognition of detainee rights must be seen as part of a continuous succession of attempts to humanise prisons, which always fail but are nevertheless renewed, and which have strengthened the institution by allowing it to demonstrate certain improvements. Beyond the purely legal and/or institutional factors, the circumspection regarding the potential to transform prison law may have weighted on the long awaited creation of European penitentiary law. Indeed, in a very clear difference from the USA, where the cause of detainees was massively brought into the legal field from the 1960s, the tendency to bring the struggles before the courts is a recent phenomenon on the old continent, particularly at the level of the ECHR. Therefore, until recently the bodies of the Convention have not been faced with a powerful and coordinated movement in favour of prisoners’ rights.

Although questioning the significance of recognising rights for detainees has largely lost some of its relevance in the academic and legal fields, it sheds light on the challenges faced by judges who are called on to safeguard the “non-theoretical or illusory but actual and concrete” rights of those behind bars.

To report on the level of the debates on the matter at the start of this century, the floor is open to different participants who contributed, at an academic or militant level: the criminologist Dan Kaminski, who hosted an international seminar on the phenomenon of acknowledging detainee rights at the time, lawyer Hugues de Suremain who began the strategic litigation in penal matters in France, and the historian Jean Bérard who observed and analysed the penal and penitentiary policies for the Dedans-Dehors review before presenting his thesis on social movements regarding the penal system (1968-1983).

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The apprehension by the Court of prison conditions in the early 2000s confronted it with a prison world largely withdrawn from the law and with disparate penitentiary systems often marked by endemic dysfunctions. In particular, the entry into the Council of Europe of the former Soviet states, and with them a colossal prison complex of great brutality, represented a major challenge for the judges in Strasbourg. From the point of view of the defenders of detainees, the entry on the scene of an international jurisdiction, whose decisions are binding on States, has naturally raised important expectations. In order to give an account of the national contexts and the transformations expected at the end of the 1990s and the beginning of the 2000s, the floor is given to key national actors of the time, association leaders, former detainees, and public officials.

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