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20 years after the Kudla judgment, celebrating the work of justice, discerning the limits and defining the perspectives

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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.

The promoters behind this project — former detainees, militants, legal practitioners, assisted by academics — above all wanted to celebrate the work of justice. Celebrating it in order to keep the emancipatory ideal alive, in a context where the political demand for security and/or management imperatives to prevail over the law is becoming ever more pressing.

Case law that touches almost every aspect of life in prison

To achieve this, the project chooses to distinguish, within a particularly rich seam of case law, the Kudla v. Poland ruling of 26 October 2000, which consecrated the right to conditions of detention that are compatible with dignity and the care required by a detainee’s state of health. It must be said that the commemorations are marred by the great discretion surrounding this ruling, which was eclipsed by the “exploit”[1] achieved by the Grand Chamber in a totally different area, the right to effective remedy with regard to the unreasonable delays in proceedings (see the presentation of the ruling). This genesis does not however in any way diminish the significance of this case law for prison. The Kudla ruling is worthy of being consecrated as the starting point for the construction of European standards in terms of prisons due to the legal and symbolic influence of the principle that it laid down.

As Françoise Tulkens recalls[2], Kudla constitutes the “shared matrix” for the right to health care and humane conditions of detention, which are largely dominant themes for the penitentiary disputes handled by the Court. Also, the principle of the right to living conditions in prison that are compatible with human dignity has been disseminated in case law beyond strictly physical aspects of accommodation (see the article by B. Pastre-Belda). The Court has based its reasoning in fields as varied as high security wings[3], body searches[4], inter-ethnic violence in detention[5], irreducible life sentences[6] or even most recently the detention regime for life prisoners[7]. An informed commentator on European case law rapidly identified in the principle contained in the Kudla ruling, an “article 3 b to the European Convention on Human Rights[8]. Although it may not be the founding deed for European penitentiary law, as the Court has more followed a line of crystallising the requirements laid down previously, Kudla has still indisputably acted as a catalyst for addressing prison issues and as such deserves to be honoured.

Drafted in the context marked by the arrival under its jurisdiction of the immense ex-Soviet prison system, which was still heavily marked by its inheritance from the Gulags, the Court sought to shake-up the economics of punishment with the ultimate aim of clearing it of its most mortifying aspects, going so far as to seek “well-being” for prisoners. This case law does not however only stem from humanitarian considerations, which could arise simply from the reformulation of the well meaning preoccupations of the philanthropic societies of the 19th century. Beyond aspects regarding the physical and psychiatric integrity of detainees, the Court indeed identified them as citizens who remain in principle, despite the deprivation of their liberty to come and go, entitled to all of their fundamental rights, which they may claim. The Grand Chamber solemnly stated such in Hirst v. the United Kingdom: “There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction[9]. By holding the penitentiary authority to the principle of legality and the obligation to transparency, the Court legally, politically and symbolically reintegrated detainees into the society.

Continued suffering in prison

Taking this rights movement seriously however implies a questioning of the actual effects. When we place this effort to transform the European penitentiary systems in a historical context, we can see that it is part of a continuous process of reforms that began at the same time that prisons were instituted as punishment, a process that has been continuously renewed ever since. This constant work on reforming prisons can therefore contribute to challenging how real the concessions made by the States to detainees are, including when they are monitored by a judge. In this regard, the continued finding of arbitrary treatment across the continent shows how hard it is for the requirements laid down by the Court to be applied in reality.

Furthermore, when it comes up against the historical inertia of prison institutions, the Court exposes itself to seeing its requirements come to naught, and its authority being ultimately diminished. These conditions appear to have dampened the activism shown by case law in the early years of this century. To an even greater extent, the dynamic of penitentiary disputes, fed by the tendency to bring the debate on prisons and militant struggles before the courts collided with a clear reorientation of European case law, marked by an uptake in the principle of subsidiarity, which resulted in an ostensible attitude of restraint on the part of the European judges with regard to the political and social options of Member States.

Access to courts, health, conditions of detention, violence: legal developments in the prism of social realities in prison 

Faced with this reality, this editorial project undertakes to draw up a review of the results of Kudla case law and attempts to see what lies ahead. Twenty years later, what impact has European case law had on prisons? Conversely, to what extent has the Court’s familiarisation with penitentiary issues changed its view of prison and how it treats disputes? These queries lead to an analysis of the relationships between prisons and European law on three levels.

Firstly, on a legal level, what are the outlines of the legal status of detainees that arise from the rulings of the Court in Strasbourg? To what extent has the Court adapted the guarantees of the Convention to the actual position of detainees? In the same manner, what dynamic arises from the interactions between national, European and international legal orders?  Then, in terms of penal and penitentiary policies, what trajectory has recent case law followed and how does it react to the new issues raised by contemporary methods of prison organisation and the development of penological conceptions and repressive choices?  Then, with regard to daily life in prison, has the emancipatory ambition underlying the case law been able to constrain the disciplinary and security primacy of prison institutions?

The project has chosen to study these questions through four topics in particular. Those of course that arise directly from the Kudla ruling and that have given rise to the most abundant disputes in Strasbourg: protecting health and conditions of detention. The striking question of prison violence, which is so central to life in prison, beyond the physical and sanitary improvements made in recent years to the conditions for detainees. But also, and above all, that which is the key to the European edifice, bringing justice into prisons.

It is also the point of view of those who cite the Convention every day to have its requirements met in terms of dignity behind bars, the detainees, militant associations and lawyers that this anniversary site intends to highlight. Yet, without any certainties beyond the irreducible dignity of people in incarceration and the fact that they are full members of the political community, these promoters of rights have felt it important to install a dialogue between stakeholders in prisons, penitentiary staff, judges and those in power, on the effects of these legal processes. In this regard, although it has been prepared by working closely with academics and their contributions meet with scientific requirements, the website does not claim to give a scientific analysis of the issues it addresses. It sets out to be as much a colourful and optimistic celebration as a serious and demanding call for action.

[1] Flauss, J-F. Actualité de la Convention européenne des droits de l’homme. Actualité juridique Droit administratif, 2001, p. 1006

[2] Tulkens, F. (2014). Les prisons en Europe: Les développements récents de la jurisprudence de la Cour européenne des droits de l’homme. Déviance et Société, vol. 38(4), 425-448.

[3] Van der Ven v. the Netherlands, No. 50901/99

[4] Frérot v. France, No. 70204/01

[5] Rodić et al. v. Bosnia-Herzegovina, No. 22893/05

[6] Kafkaris v. Cyprus [GC], No. 21906/04

[7] N.T. v. Russia, No. 14727/11

[8] Sudre, F. “L’article 3 bis de la Convention européenne des droits de l’homme : le droit à des conditions de détention conformes au respect de la dignité de la personne humaine”, Mélanges G. Cohen-Jonathan, Bruylant, 2004. 1503.

[9] Hirst v. the United Kingdom (No. 2) [GC], № 74025/01