This article is taken from a paper presented at a conference held in April 2013 and was published in French in the book in FERRAN N., SLAMA S (dir.), Défendre en justice la cause des personnes détenues, Commission Nationale Consultative des Droits de l’Homme, Paris, La Documentation Française.
The Observatoire International des Prisons, the French section (further OIP), which was formed in 1996, five years after the creation of its parent institution the international secretariat, took many years to begin to take legal action, timidly in 2001/2002, then more resolutely in 2003/2004.
Part of the reason for this tardiness is doubtlessly in part due to the fact that, when it began, the association had a somewhat ambivalent relationship with the issue of the rights of detainees.
On the one hand, the law was conceived as an essential means of objection for the criticism aimed at prisons and a method to recall that what becomes of detainees is a collective responsibility. This is clear in the founding deed of the organisation, the call for the creation of an International Prison Observatory in Le Monde in November 1991, which announced that it “would have the aim of monitoring conditions of detention (…); it will raise the alert on breaches of the human rights of detainees, as defined in conventions, rules and other instruments whether they are binding or otherwise”. Far more, the use of law as a protection against arbitrary actions was, from the outset, implicitly perceived as part of the OIP’s mandate: the ‘Prisoner’s Guide’ (Guide du prisonnier), which was the association’s first publication in 1996, was explicitly intended to equip detainees to face up to the authorities and to thereby bring an end to their legal isolation.
On the other hand, in its early days, the association largely ignored legal combat. As its primary role was to denounce abuse and structural failings, energy was focused on preparing a rigorous methodology of observation and investigation, to build its credibility and to incite a public debate on an issue that was then truly marginal. The context then did not lend itself to driving a strategy based on law. The original team was not made up of lawyers, there was little case law on prisons and the existing one was hostile. The number of detainees involved in legal action could be counted on one hand. When they presented themselves, the legal issues that required a public position to be taken were addressed outside the national secretariat, by two university lecturers, Martine Herzog-Evans and Eric Péchillon. They both answered the occasional queries from the media and decoded the (rare) developments in the review Dedans-Dehors.
However, beyond these contextual aspects, there was a largely shared conviction that progress in penitentiary law was not likely to make security a prime concern in institutions or to influence its disciplinary philosophy. The OIP paid far greater attention to analyses that suggested that clearly enhancing the legal guarantees afforded to detainees and that if the administration were to adopt a discourse on rights, this would create greater legitimacy in the use of incarceration, which would make it harder to demonstrate the arbitrary nature of imprisonment. These questions regularly arose during discussions both inside the association and with other organisations on the line followed by the OIP in seeking an alignment between the rights of detainees and common law. They may have contributed to the lack of any conception of a litigious dimension, whilst this was a natural fit with the observe-alert-protect triptych that defines the organisation’s mandate, and a template was available, that of the GISTI, the main association for the defence of foreign citizens.
However, the angle for legal disputes, which emerged progressively and was fixed ex post facto did not result in a split between the analysis of the nature of incarceration and its relationship with justice. By reaffirming the requirement for supervision of prison relations in its Articles of Association, alongside its claim for a drastic reduction in the use of incarceration, the association intended to raise the ‘dilemma’ of rights in detention to a political level, between the risk of legitimacy and the need for protection, by considering the law as a means to deconstruct the justifications of the logic of exclusion that is inherent to imprisonment. The initial chosen strategy of safe action taken through law was reaffirmed and that of a theoretical position holding people faced by an arbitrary situation at a distance was rejected. This clarification allowed for the first incursions and then for the OIP to take up a position in the legal field.
Taking stock of the emergence of legal action first requires us to focus on a specific moment, the years 2000-2001, which saw the issue of detainees’ rights acquire some considerable political importance, then to consider the cases handled, which illustrate an instrumental conception of the use of the law: using it to challenge the use of imprisonment.
The emergence of a legal issue regarding prisons in the year 2000 was certainly a precipitating factor. The chronology of the events shows it as well. In July 1999, E. Guigou, the Minister of Justice, assigned the Presiding Judge of the Cour de cassation [French Supreme Court] the task of exploring possible ways of strengthening the control of penitentiary establishments, in response to a campaign begun by the OIP a month earlier with media coverage of serious abuses at Beauvais detention centre. In March 2000, the report by the high magistrate not only demanded the creation of an independent inspection body, but imposed the prior measure of a complete overhaul of penitentiary law, which he criticised harshly, in that it essentially led to loops and made exercising rights subordinate to the authority’s imperatives of order and security. It recommended a vote on a penitentiary law that would organise a legal hierarchy that complied with the hierarchy of the standards, specifically define the powers of the authority and stipulate a legal status for detainees that corresponds to those of citizens. Progress was impaired by the parliamentary enquiry commissions. In February 2001, a strategic orientation committee was formed to provide input for the drafting of a penitentiary law. The OIP refused to be involved in order to maintain the necessary distance for its role as a countervailing power, but regularly provided analyses of the work carried out in this context. The issue of the legal status of detainees therefore became a major political issue for the OIP. It became even more so with the withdrawal of the project for penitentiary reform.
In this context, an event incited us to invest in legal combat, which took place before the Administrative Supreme Court (Conseil d’Etat), not before the litigation division, but the internal division: our comrade Eric Péchillon had realised that a provision of the law of 12 April 2000, with general applicability, now applied to the penitentiary authority and implied that detainees who were subject to disciplinary proceedings could be assisted by a lawyer. This had been a strong claim by the OIP for years, and to which the Ministry of Justice was strongly opposed. After a lively dispute with the OIP, the Minister called on the Administrative Supreme Court for an opinion, doubtlessly to avoid an accusation of collusion. The opinion was as hoped, and in the following weeks lawyers entered the proceedings. It was a major victory. This experience revealed that, on the one hand, the authority may not have entire control over producing standards and that it could be obliged to accept painful changes, and on the other hand, that legal action could increase the organisation’s striking power. This first confrontation also created its own dynamic, as bringing lawyers into prisons increased the legal requests to the OIP.
The form of this legal branch gradually took shape. There were firstly some appeals against individual decisions and claims for compensation. But it was action taken before the Administrative Supreme Court to have disciplinary authority taken out of the hands of the head of the establishment that, in spite of its failure, was really decisive and confirmed the association’s commitment to pursuing litigation. Firstly, because from that time, the President, Thierry Lévy, gave it enthusiastic support. Then because this strategy was encouraged by none other than the French Minister for Justice herself, the magistrates informed us that the appeal had made a strong impression on the prison governors. Patrick Marest, national delegate—who saw the potential of this litigious strategy, despite the lack of results over several years—formally integrated this dimension into the range of actions taken by the OIP under the title “legal guerilla” (guérilla juridique).
Once durably installed, the activity of this ‘guerilla’ increased according to a rather different design than that expressed by its title. Indeed, the increasing number of cases, through for example standardised-appeals, was not an aim in itself, to disrupt the penitentiary services, even if the creation of a risk of litigation for them, through proceedings regarding various places and changing issues was a concern, with an aim of collective protection. Beyond the internal strategic and tactical imperatives of the litigating approach, it was above all pursuing the association’s political priorities through legal means that guided this drive. With multiple aims in mind: protecting people exposed to severe treatments; forging an alignment between the rules applicable in prison and common law to limit the hold of the authorities over detainees; having an impact on penal policy by submitting prisons to non-negotiable legal constraints, which may hinder the routine overcrowding of people behind bars; taking an objective look at daily failings by having them queried by a legal third party; serving as a sounding box for the claims of the OIP, particularly with regard to technical issues, which are difficult to broadcast through the media, or to highlight the conflictual nature of a newly created measure; using litigation to obtain information kept secret, etc.
This is how the factual situations that merited legal attention and the regulatory actions to be attacked were identified from amongst the letters from detainees and the enquiries carried out. The bubbling energy of the OIP did not however lend itself to such a methodological organisation of the work. Systematic planning would also have gone against the choice to bring at least the main cases before the highest courts to keep the best control over the direction of case law. This position was made possible by the bonds formed in 2004-2005 with a lawyer at the Council of State and at the Court of Cassation, Patrice Spinosi, who offered access to judges in the administrative and judiciary supreme courts. Several strong lines still ran through the litigious activity.
The essential step was opening access to the courts by removing internal measures, to be able to ensure the protection sought, to familiarise the courts with the realities of life in incarceration, and to create individual disputes that could be heard in Strasbourg. In this regard, we considered that the power of the criticism aimed at penitentiary law in 2000 by public reports could lead the internal jurisdictions to carry out their own overhauling. This is why, in spite of the unavailability of a domestic appeals procedure, we did not seek to bring cases before the European Court of Human Rights as a priority. European case law has however served as a basis for many of the proceedings undertaken to open access to a judge, with regard to transfers, entries on registers of particularly reported detainees, precautionary disciplinary proceedings, differentiated regimes, etc.
Other strategies were more directly related to the overall priorities of the OIP. In this way, the issue of long sentences was a leitmotiv, with in particular actions taken to prevent life sentences, on the grounds of the prohibition of inhuman treatment, the placing of dangerous released prisoners under mobile electronic surveillance, secure detention, but also detention measures for people deprived of hope of release, such as permanent transfers (security rotations), prolonged isolation, etc. Preserving the advances from the law of 1994 that removed health care in prison from the penitentiary remit was also a constant concern, through for example actions regarding the confidentiality of care during transfer to hospital and more broadly the refusal of ‘shared medical secrecy’ as promoted by the authorities.
Litigation once again sought to follow the angles of penitentiary and penal policies, as analysed by the OIP. In this way, the report of 2003 was focused on the clear degradation of the situation in prisons due to the increase in flows of incarceration. The OIP attempted to start a debate on overcrowding in the penal sector by means of legislation repressing slum landlords. Thereafter, we joined the action by the Syndicat des avocats de France (French Lawyers Union), which was a driving force behind claims for compensation for physical conditions of detention. The report of 2005 highlighted the ‘security turning point’ for penitentiary policy. The proceedings then targeted the action of newly created special forces, the physical systems equipping solitary confinement areas, etc.
In this way, the litigious approach did not give rise to much internal discussion, with the exception made in 2003-2004, for the difficulty of the issue of whether the association should be involved in the proceedings related to suicides. The regime for the State’s liability was split between two categories of faults, fault of surveillance and fault of placement. There were concerns over the possible unwanted consequences of such case law in terms of reducing the independence and the privacy of detainees (increased surveillance and profiling to identify risks, clearing of detention rooms to prevent suicides). We decided to abstain from litigation. However, the feared change occurred as part of apparently foreseeable action, which intended the enhancement of the fire-proofing of mattresses distributed in the establishments. Whilst enhancing the principle of protecting the right to life, the Council of State stipulated the obligation to adapt the mattresses to the behaviour of the people held together in a cell. Although this solution was impractical in real terms, particularly in a detention centre with a high turn-over, it accentuated the actuarial logic for handling suicides in prison, which we were fighting elsewhere.
Such an error in foresight is, we hope, rare in the review of those years. However, we have to admit that this is a partial success. From a theoretical standpoint, the progress achieved is only equal to the archaic state of the case law with regard to prisons until recently. In real terms, the authority is now legally obliged to answer claims and a detainee can sometimes win. Some documents from cases illustrate the advances made in a few years. “He is very litigious: he often makes claims (…) on any subject and he doesn’t hesitate to, indiscriminately, file a claim with the administrative courts” this is how the prison governor described the behaviour of a Mr. Boussouar a few years before the latter obtained the consecration of the principle of the safeguarding by the judge of the detainee’s most fundamental rights from the Council of State in its most formal sitting.
However, the rights that have been so hard won have only been weakly achieved in daily incarceration. The rights of appeal are largely impractical: the choice of taking cases that are solidly substantiated by prior investigative work may have led the judge in error with regard to the capacity for applicants to easily demonstrate the attacks suffered, a condition which is imposed for the justiciability of penitentiary measures. Navigating the different forms of appeal (in cancellation, fundamental liberties, suspension, useful measures, not to mention finding evidence) is extremely complex. This vision of a high-performing applicant, who can choose from the range of proceedings to find the most appropriate measure, is far removed from the actual state of affairs. In a word, the effective implementation of legal protection still today, most often, requires the striking force of a player, such as the OIP, as can be seen from the state of case law. As for substantial rights, the major principles consecrated by the courts are rarely applied positively thereafter. The construction of law through the courts has, without doubt, favoured an excessively case-based logic and the creation of weakly determined standards, with the protection of rights being referred to a potential intervention by a judge. The supervision of disciplinary repression has doubtlessly played a role in the implementation of differentiated regimes, an organisational system of great symbolic violence as it deploys widespread discrimination. But, it has done so in the same way as the critics made as regards prison being an archaic and unequivocal response to the great variety of crimes and offences, or the European recommendations that promote a managerial model for handling risks. Far from inviting a fatalistic attitude to the issue of imprisonment, this retrospective view reminds us that the ambitions placed in the use of law can only be limited, and that they are only founded if the legal battle is part of a broader questioning of the penal institution. It is on this condition that, with perseverance, the weapon of law may fight back the use of prisons and make them less degrading.
 Extraordinary General Meeting of 2001
 Transfers between detention centres (CAA Paris, 11 April 2006, Ségura, No. 02PA02389; TA Dijon, 3 June 2003, Azaiza) and the accidental death of a young man in a fire in an overcrowded cell (CE, 17 Dec. 2008, Minster for Justice v.. Zaouiya, No. 292088).
 CE, 30 July 2003, OIP, No. 253973
 From 2005, under the specific drive from the CAA Paris, and the end of 2007 before the Council of State
 Only special barristers the ‘avocats aux conseils’ can appear before the Council of State ruling in annulment.
 Measures deemed as not being open to appeal before an administrative judge.
 The first European proceedings, carried out with Maître Delphine Boesel, was to be the Khider case (9 July 2009, No. 39364/05). The European route was really taken from 2008.
 Also because ‘lifers’ were particularly willing to take legal action
 In the Lucien Léger Case, the intervention was late since it happened at the level of the Grand Chamber (30 March 2009, removal).
 CE, 12 December 2007, OIP, No. 293993.
 Route closed by the Cour de cassation in 2009 (Crim. 20 January 2009) but that caused a judicial investigation by Nancy Court of Appeal, then a conviction by the European Court of Human Rights (Canali v. France, 24 April 2013, No. 40119/09).