Chapter 1
All countries

The techniques employed by the European Court of Human Rights to protect the rights of detainees

library image

Unlike other international instruments to protect human rights[1], the European Convention on Human Rights only protects people deprived of their liberty from arbitrary detention[2]. This absence of a standard, which was deplored by the European judge A. Spielmman[3] and is surprising given the post-war context that gave rise to the European Convention, is not however irrevocable. Indeed, not withstanding this legislative vacuum, an examination of European case law reveals that the European Court of Human Rights[4] has concretely and efficiently protected the fundamental rights of detainees[5].

Thanks to a particularly dynamic interpretive approach, the European Court, with the initial help of the European Commission of Human Rights, drafted a European standard for protecting the rights of detainees, a true common European law on detention. The rapid development of this standard is mainly due to the constructive interpretation of conventional standards by European judges, who, throughout this interpretive activity also explicitly employed external sources such as European Soft Law drafted by the Council of Europe, constituted by the European Prison Rules[6] and the recommendations of the European Committee for the Prevention of Torture[7]. European case law regarding detainees must also therefore be considered in light of this systemic context. During the revision of the European Prison Rules in 2006, Jean-Paul Céré, evoked the “irrevocable movement towards the emancipation of human rights in prisons” thanks to the existence of “a triptych protecting the rights of detainees at the level of the Council of Europe[8]. The components of this “triptych” must not however be placed on the same level. Indeed, the Prison Rules and the recommendations of the Committee for the Prevention of Torture are respectively legislative soft law and jurisprudential soft law[9]; these two components therefore have no binding force. The standard drafted by European judges however are imposed on national authorities as minimum standards for the protection of the rights of detainees.

This case law based mechanism for guaranteeing human rights therefore has a capital importance on the Council of Europe. In this regard, aware of the absolute necessity of granting real and effective protection to detainees, who are particularly vulnerable people in view of their legal and factual status, which is characterised in particular by their dependency, European case law has continually improved its interpretive techniques. Indeed, if initially detainees were only protected in an indirect manner in the system of the Convention through the technique of ‘ricochet protection’ (I), European judges have added direct protection to this, thereby granting detainees category-based or “categorical protection[10](II).

I. The initial case-law mechanism for protecting the fundamental rights of detainees

Like other categories of people that are not expressly mentioned in conventions, the fundamental rights of people deprived of their liberty have been protected by bodies from the system of the Convention through the mechanism of ‘protection by ricochet’. Although, in principle, it is indirect protection (A), the mechanism has still made it possible, and continues to make it possible, to offer very extensive protection of the fundamental rights of detainees (B).

Indirect protection

‘Protection by ricochet’ is a case law technique that has been broadly used by European judges to extend the applicability of the European Convention to areas that are not expressly included in the text of the Convention, such as removal orders for foreigners[11], environmental protection[12] or conditions of detention for individuals deprived of their freedom of movement. Indeed, the European Convention does not contain any provisions regarding conditions of detention and, a fortiori, regarding the treatment of detainees. Nevertheless, in its earliest days, the European Commission of Human Rights considered that some conditions of detention constituted inhuman and degrading treatment that was contrary to article 3 of the Convention. At this stage, two stages in its reasoning must be highlighted.

Firstly, in its ruling on Ilse Koch v. Germany of 8 March 1962, the European Commission affirmed the principle according to which detention does not deprive a detainee of their rights under the European Convention[13]. This was the essential starting point for the issue of human rights to enter into and progress in the context of prisons. In doing so, the European Commission implicitly recognises the human dignity of people in detention, allowing them, like any other human being, to benefit from human rights. A few years later, in its ruling on Campbell and Fell v. the United Kingdom, the European Court specified in its ruling that “justice cannot stop at the prison gate[14]. Although they may be deprived of their liberty to come and go, locked up and dependent on the authorities, a detainee must be able to continue to enjoy all the fundamental rights associated with being human.

Secondly, and as a consequence, the European Commission of Human Rights, in its ruling on Kotälla v. the Netherlands of 6 May 1978, used the ‘protection by ricochet’ technique with the aim of applying the guarantees of the Convention directly to detainees. In this way, it declared that a prison sentence and the manner in which it is enforced could raise issues under article 3 of the Convention[15]. Therefore, although the European Convention does not contain any provisions regarding conditions of detention, the authorities may be guilty of a breach of article 3 due to the manner in which a prison sentence is enforced.

In this case, it offers indirect protection. During the performance of a prison sentence, the prison authorities must not take measures that breach the rights guaranteed by the Convention. This protection mechanism therefore allows European judges to indicate shortfalls in the drafting of the Convention. It is however important to stress that means only identifying these shortfalls and, through ‘protection by ricochet’, ensuring indirect and therefore minimal protection for individuals. European judges will only really make up for these shortfalls through the constructive interpretation of the rights, i.e. by expressly broadening the scope of application for the provisions of the Convention to situations that were not originally provided for by the authors of the legislation, and also by enriching the conditions for applying these provisions. Although, through this technique of indirect protection, European judges are only working around a gap in the standards, this guarantee is still very extensive.

Extensive protection

Although they are not expressly protected by the European Convention on Human Rights, detainees’ rights under the Convention are thus protected by case law and protection by ricochet. This extended protection is deployed through controlling the active interference by government institutions and corresponds to how European judges envisage detainees, i.e. in all their complexity, which is to say equally as a human being, citizen, litigant and person subject to constraints.

European judges first require that authorities guarantee respect for the moral and physical integrity of people in detention. In this regard, it is in particular prohibited to make a detainee subject to a measure of isolation for which the conditions of performance would constitute treatment contrary to article 3 of the Convention. According to the Court, “complete sensory isolation, coupled with total social isolation, can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason. On the other hand, the removal from association with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or degrading punishment[16]. In each case of this kind, the Court will take into account “the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned[17]. In the same manner, European judges control how searches are carried out in detention. Their rulings persistently recall that “while strip-searches may be necessary on occasions to ensure prison security or prevent disorder or crime, they must be conducted in an appropriate manner[18]. Furthermore, the Court penalises systematic unjustified searches that are not dictated by security concerns, as they can make detainees feel the victims of arbitrary measures[19]. The moral integrity of people deprived of their liberty is also the subject of particular attention for the Court. For example, after having judged that locking the accused in a metal cage during the public hearing ‘objectively’ constituted degrading treatment[20] in its Karachentsev ruling[21], the Court ruled in the same manner for hearings held by video-conference from the prison, even if the accused was not physically present at the court. The Court was also called to rule on the issue of the specific integrity of female detainees. In its Korneykova and Korneykov[22] ruling, the Court considered that the shackling of a woman (deprived of her liberty) that was suffering pain from contractions and immediately after giving birth “amounted to inhuman and degrading treatment”.

The European Court also committed itself to protecting the social relationships of detainees and, more broadly, all the situations or times that favour contact or communication with the outside world. For example, European judges were quick to consider that penitentiary authorities could be guilty of interference in the right to respect for correspondence, guaranteed by article 8 of the Convention, when authorities intercepted a letter during an inspection and censored it[23]. Also, the Court stressed that, as citizens, detainees enjoy civil rights. In its judgment on Hirst v. the United Kingdom[24], European judges recognised that people deprived of their liberty hold civil rights, subject to the restrictions implicitly allowed by article 3 of  Protocol 1 guaranteeing the right to free elections. They considered that there was “no question that prisoners forfeit their Convention rights merely because of their status as detainees following conviction. Nor was there any place under the Convention system, where tolerance and broadmindedness were the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion.” (§ 70). In the same manner, the protection of detainees’ right to instruction, guaranteed in a general manner by article 2 of Protocol 1, occurs through controlling the interferences of which the authorities may be guilty for example by refusing a detainee access to the education centre in the prison[25] or access to the necessary equipment, such as a computer[26]. Protection by ricochet is also deployed with regard to the respect for privacy guaranteed by article 8 of the Convention. The European Court has indeed transposed to the prison environment “the right to a healthy environment”[27], a right that already transposed environmental issues in the field of application of the Convention through protection by ricochet. In the Branduse v. Romania judgment[28], the European judge accepted to consider that due to the proximity of a rubbish tip and the passivity of the authorities to neutralising it “the applicant’s quality of life and well-being were affected to the detriment of his private life in a way which was not merely the consequence of his deprivation of liberty” (§ 67).

Finally, as a litigant, a detainee enjoys, on the one hand, the “right of access” to a court, protected by article 6 of the Convention[29] and guaranteeing detainees the suppression of de facto and de jure impediments to access to a court and, on the other hand, the right to an effective remedy, guaranteed by article 13 of the Convention, when an individual measure to which they are subject, in relation to the performance of their sentence[30] or to the individualisation of penalties[31], breaches their fundamental substantive rights. For example, with regard to physical conditions of detention, the European Court requires the existence of a remedy that is preventive (to prevent the continuation of a breach or to allow for an improvement in the physical conditions of detention) and compensatory (compensation a posteriori)[32].

Thanks to protection by ricochet, a person in detention is therefore protected in real terms by the European Court, which accepts the role of controlling the authorities when they commit active interference in fundamental rights. However, the Court was not satisfied with working around this shortfall in the drafting of the Convention, it also sought to fill it through constructive interpretation and, specifically, by stipulating positive obligations, which, in this manner, led to a categorical protection.

II. Perfecting the case-law protection of the fundamental rights of detainees

The European Court of Human Rights did not stop, as was the case for foreigners, with indirect protection of the fundamental rights of detainees. Through an audacious, constructive interpretation of the rights under the Convention, it offered detainees direct protection (A) and, thereby, contributed to the emergence of real categorical protection for detainees (B).

Direct protection

The judgment that is emblematic of a move from indirect to direct protection of detainees is of course Kudla V. Poland from 26 October 2000[33]. By expressly specifying that “Article 3 of the Convention requires that the State must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance“(§94), European judges directly inserted a new right into article 3, the ‘right to conditions of detention that respect human dignity’. In this regard, Professor F. Sudre speaks of a new “article 3 bis of the European Convention on Human Rights[34]. Conditions of detention, which were not originally provided for by the text of the Convention, are now explicitly protected thanks to the constructive interpretation by European judges. Authorities must therefore, on the one hand, ensure that material conditions of detention do not represent inhuman or degrading treatment and, on the other hand, protect the health[35] and well-being[36] of detainees. The European judges therefore filled the gap in the standards through the dynamic interpretation of article 3 and have continuously enriched this standard thereafter.

In this regard, the protection of detainees’ health has seen considerable development. Through its Xiros ruling[37], the Court made the obligation of care systematic under article 3 of the Convention. It imposed on authorities an obligation “to ensure that a detainee is capable of serving their sentence, to administer the necessary medical care and to adapt, where applicable, the general conditions of detention to their specific state of health”. These three types of requirements (capacity for detention[38], administration of care[39] and the adaptation of the physical conditions[40]) were thoroughly detailed in the same ruling with the aim of guiding the authorities and limiting their room for manoeuvre[41]. This obligation to provide care has been an endless source of progress. The Court includes in this the protection of detainees from passive smoking[42] and instructs the authorities to “appropriately feed[43] those in detention. For example in its Ebedin Abi judgment[44], the European Court found a breach of article 3 due to the inappropriateness of the meals compared with the diet medically prescribed to the applicant. Specifically taking into account the difficulties confronted by detainees in establishing the link between such a failing and the decline in health (§ 50), the Court considered it necessary to specify, “in view of the impossibility for a detainee to have medical treatment at any time in the hospital of their choice, (…) it [is the responsibility of] the internal authorities to have the standard menu offered by the establishment in question examined by a specialist and to submit the applicant, at the same time, to a medical examination in relation to their grievances” (§ 53). In this case, the Court deemed that, as the authorities did not seek to know if the food provided to the applicant was appropriate or if the medically prescribed diet had any effects, they “did not take the necessary measures to protect the health and well-being of the applicant” (§ 56). The detainee’s health also includes their mental health. The development of a European standard in this matter is also remarkable. Since its Keenan ruling, in which the Court stressed “in the case of mentally ill persons, to take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment[45], it considered that “some treatments infringe Article 3 due to the fact that they are inflicted on a person suffering from mental illness[46]. The obligations in the area have been specified. In particular in its Bamouhammad ruling, the Court declared that “in the event that treatment is not possible in the place of detention, it must be possible for the detainee to be hospitalised or transferred to a specialist ward[47].

In a less spectacular manner, it should also be noted that the Court has allowed detainees to benefit from the previously mentioned positive obligations in other disputes intended to protect their integrity. This is particularly the case for European case law regarding preventing acts of violence. In the Pantea v. Romania judgment[48], regarding violence between inmates during provisional detention, the European Court stressed that article 3 of the Convention obliges the “authorities of Contracting States not only to abstain from provoking such treatments, but also to take the preventive practical measures to protect the physical integrity and health of people deprived of their liberty” (§189), and this, even with regard to relationships between individuals, as was the case here[49]. In the same manner, in the field of article 2 of the Convention, the European Court made prison authorities responsible for preventing risks of threats to the life of the people placed under their control. This obligation therefore applies, amongst other things[50], to preventing the risk inherent to the behaviour of the authorities[51]. Traditionally, judges consider that article 2 may “in well defined circumstances; make the competent authorities responsible for taking practical preventive measures to protect an individual from others (…)”[52]. Finally, in line with its traditional case law encouraging respect for family life by positive measures, the European Court also specified in its ruling on Messina v. Italy[53], that “it is essential in the respect of family life that the penitentiary administration helps the detainee to maintain contact with their immediate family[54]. This direct protection, which is a remarkable development of the guarantee under the Convention granted to detainees, demonstrates, amongst other things, the Court’s aim to create a categorical protection, i.e. specifically adapted to the context regarding the deprivation of freedom.

‘Categorical’ protection

We can see that in some scenarios, the judges in Strasbourg do not hesitate to create new rights for the exclusive benefit of a specific category of individuals: detainees. From a theoretical point of view, such an approach bears witness to the fact that the universal nature of human rights can coexist with a categorical approach. In this sense and in a general manner, Professor F. Sudre specified that “whilst article 3 applies to any man, as perceived as a unity and its entirety (…), and takes a global approach based on the principle of the universal identity of human beings, European case law has favoured the emergence of category based protection, which, prior to an analytical approach, induces the division of men and takes into account particular categories of individuals. Based on the mechanism of protection by ricochet, categorical protection, through a gradual transition, becomes a specific protection[55]. With regard to detainees, the Court has therefore intended to carry out a movement to ‘acclimatise’ the general standard of the Convention to the specific condition in which detainees are placed. This ‘acclimatisation’, which is required by the vulnerability of detainees and, more broadly, by their specific status, is particularly visible through the interpretations of article 3 of the Convention made by the European Court in its Kudla ruling, to the extent that European judges created a new specific right for detainees. Disputes regarding life sentences reveal, in the same manner, the Court’s concern for extending this protection and adapting it by stipulating new specific obligations with regard to detainees. The Vinter ruling[56] is symbolic in this regard. At the end of an analysis of the importance of the reinsertion of detainees in various legal orders, the Court imposed on States the obligation to create a mechanism for re-examining life sentences (§ 119) then determined its fundamental conditions (§ 120). Its concerns regarding returning detainees to society were also decisive in the Murray ruling[57]. Based very largely on the findings of the Vinter case, the Court recalled that “people convicted, including those serving life sentences, must be able to work towards their rehabilitation” (§ 103). With regard specifically to detainees serving a life sentence who suffer from mental illness, the Court considers that article 3 of the Convention subsequently required the authorities to offer them “specific conditions of detention to offer them a realistic possibility of changing themselves and to therefore nourish the hope of being released. The absence of any such possibility for a detainee can consequently make their life sentence non-reducible de facto” (§ 112).

More generally, this categorical approach can be seen implicitly when European judges apply the theory of positive obligations and apply it to protect detainees against specific State interference in the prison environment or, at least, that is exacerbated by the prison environment. Such is the case for example in the Cotlet v. Romania judgment[58], regarding a hindrance of the correspondence of a detainee with the institutions of the European Convention. The Court took a further step in the interpretation of respect for correspondence by deducing a positive obligation for the authorities to provide the necessary equipment for correspondence, namely, paper, envelopes and stamps (§ 59). It is indeed essential that detainees can maintain contacts with the outside world during their detention[59] in spite of their imprisonment and the inherent hindrances to correspondence (in particular the detainee’s dependence on the prison authorities to have the equipment necessary for the correspondence). In the same manner, with regard to the positive obligation to prevent threats to the life of detainees, European judges have specified that the authorities are also under this obligation when the risks are inherent to the detainee’s own actions. This of course refers to attempts at suicide, which are particularly common in detention due to the moral suffering that detainees can experience. The surveillance obligation that the European Court places on the prison authorities[60] is then justified by the detainees’ dependence on the prison authorities and therefore by their particular vulnerability.

The specific position in which detainees are placed and the multiple facets of their status (person, citizen, litigant and person subject to constraints) have also obliged European judges, in the short or long-term, to elaborate a specific standard adjusted to this context, beyond the simple ‘protection by ricochet’. Human Rights Judges have therefore progressively brought into being a common European law on detention, which is adapted not only to people in detention but also to the imperatives and constraints related to prison sentences. 

[1] For example, article 10(3) of the United Nations International Covenant on Civil and Political Rights of 1966 provides that “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.”; in the same sense, article 5 of the American Convention on Human Rights, related to a person’s right to moral integrity, provides in its paragraph 6 that “Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social rehabilitation of the prisoners.”.

[2] Article 5 of the European Convention on Human Rights guarantees the right to liberty and security.

[3] A. Spielmann, “La protection des droits de l’homme. Quid des droits des détenus ?” in Mélanges G. Wiarda, Protection des droits de l’homme : la dimension européenne, ed. Carl Heymanns Verlag K.G, Cologne, 1988, p. 589.

[4] The ECHR, hereafter.

[5] We will speak of detainees stricto sensu, i.e. people deprived of their liberty in remand prisons (temporary detention) or serving a sentence in a penitentiary establishment (detention centres or central prisons).

[6] European Prison Rules, Recommendation Rec(2006)2-rev adopted by the Committee of Ministers on 11 January 2006 and revised on 1 July 2020.

[7] Created by the European Convention on Human Rights, the Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment of 26 November 1987.

[8] J.-P. Céré, “Les nouvelles règles pénitentiaires européennes. Un pas décisif vers une approche globale des droits des détenus”, Revue pénitentiaire et de droit pénal, 2006, pp. 415-423, spec. p. 423.

[9] Distinction made by Professor J.-F. Flauss. See J.-F. Flauss, “Du droit international comparé des droits de l’homme dans la jurisprudence de la Cour européenne des droits de l’homme”, in Institut Suisse de Droit Comparé, Le rôle du droit comparé dans l’avènement du droit européen, Lausanne, 14-15 April 2000, Schulthess, Zurich, 2002, pp. 159-182, spec. pp. 167-170.

[10] F. Sudre, “L’économie générale de l’article 3 CEDH”, in C.-A. Chassin (dir.), La portée de l’article 3 de la Convention EDH, coll. “Rencontres européennes”, Bruylant, Brussels, 2006, p 7, spec. pp. 16-17.

[11] For example, ECHR, 7 July 1989, Soering v. the United Kingdom (extradition and article 3 ECHR), ECHR, 20 March 1991, Cruz Varas v. Sweden, A.201 (expulsion and article 3 ECHR), ECHR, 26 March 1992, Beldjoudi v. France, A.234-A (expulsion and article 8 ECHR).

[12] ECHR, 9 December 1994, Lopez Ostra v. Spain; ECHR, 19 February 1998, Guerra v. Italy, Rec. 98-I.

[13] European Commission of Human Rights, 8 March 1962, dec. Ilse Koch v. Germany, ann. 5, p. 127.

[14] ECHR, 28 June 1984, Campbell & Fell v. the United Kingdom, §69, A.80 (obs. P. Tavernier, JDI, 1986, p. 1058).

[15] European Commission of Human Rights, 6 May 1978, dec. Kotälla v. the Netherlands, DR 14, p. 238.

[16] ECHR, 8 April 2004, Sadak v. Turkey, § 45. In the same sense, ECHR, GC, 4 July 2006, Ramirez Sanchez v. France, §123 (RTDH, 2007, pp. 249-260, note P. Poncela). 

[17] ECHR, 4 February 2003, Van Der Ven v. the Netherlands, § 51.

[18] ECHR, 24 July 2001, Valasinas v. Lithuania, § 117. In the same sense, ECHR, 9 July 2009, Khider v. France, § 105.

[19] In this sense, ECHR, 20 January 2011, El Shennawy v. France, § 37.

[20] ECHR, GC, 17 July 2014, Svinarenko and Slyadnev v. Russia (RDP, 2015, 829, chron. B. Pastre-Belda).

[21] ECHR, 17 April 2018, Karachentsev v. Russia, 17 April 2018, §§ 51-53.

[22] ECHR, 24 March 2016, Korneykova and Korneykov v. Ukraine, § 115 (RDP, 2017, pp. 805 et seq., chron. B. Pastre-Belda).

[23] e.g. ECHR, 25 March 2008, Vitan v. Romania, § 78.

[24] ECHR, GC., 6 October 2005, Hirst v. the United Kingdom (AJDA, 2006, p. 475, obs. J.-F. Flauss).

[25] ECHR, 27 May 2014, Velyo Velev v. Bulgaria.

[26] ECHR, 18 June 2019, Mehmet Reşit Arslan and Orhan Bingöl v. Turkey.

[27] e.g., ECHR, GC, 8 July 2003, Hatton et al. v. the United Kingdom.

[28] ECHR, 7 April 2009, Branduse v. Romania.

[29] ECHR, 21 February 1975, Golder v. the United Kingdom, § 36 (AFDI, 1975, p.330, note R. Pelloux). In this case, the applicant was refused permission by the Home Secretary to consult a solicitor with a view to bringing libel proceedings against a prison officer, which deprived him of enjoying the right to a fair trial.

[30] e.g. ECHR, 12 June 2007, Frérot v. France, §66. The Court found there had been a breach of article 13 with regard to the fact that the French Council of State declared an applicant’s demand to cancel a prison governor’s decision not to deliver a letter as inadmissible on the sole grounds that it was an internal measure that could not be subject to a remedy for abuse of power.

[31] e.g. ECHR, 18 October 2005, Schemkamper v. France, §44. The Court specified that before the French law of 9 March 2004, which awarded jurisdiction over the decisions of the sentencing judge, the decisions of the latter with regard to matters of permission for temporary leave were “matters of legal administration” that could only be disputed by the Public Prosecutor (§43), which constituted a breach of article 13.

[32] ECHR, 21 May 2015, Yengo v. France, § 50 (JCP G, 2015, doctr. 845, F. Sudre); ECHR, 30 January 2020, J.M.B. et al. v. France, § 167 (JCP G, 2020, obs. 154, B. Pastre-Belda); ECHR, 9 April 2020, dec., Shmelev et al. v. Russia, No. 41743/17 and 16 other claims.

[33] ECHR, GC, 26 October 2000, Kudla v. Poland (RTDH, 2002, p.169, note J.-F. Flauss).

[34] F. Sudre, “L’article 3bis de la Convention européenne des droits de l’homme : le droit à des conditions de détention conformes au respect de la dignité humaine ”, in Mélanges en hommage au Doyen G. Cohen-Jonathan, Liberté, justice, tolérance, Bruylant, 2004, pp. 1485-1500. On this direct protection, see also B. Ecochard, “L’émergence d’un droit à des conditions de détention décentes garanti par l’article 3 de la Convention EDH”, RFDA, 2003, pp. 99-108; A. Gouttenoire, “Les droits de l’homme en prison”, Revue pénitentiaire et de droit pénal, 2005, pp. 107-116, spec. pp. 107-108. For a more nuanced opinion, see P. Wachsmann, “Convention EDH. – Droits garantis. – Libertés de la personne physique”, in JurisClasseur Europe Traité, section No. 6520, spec. §50. Conversely, for Professor P. Wachsmann it seems excessive to speak of an article “3a” of the Convention, he sees the direct protection of conditions of detention by article 3 (implemented by the Kudla ruling of the European Court of Human Rights) as “merely the development of the implications of the absolute prohibition of inhuman or degrading treatments”.

[35] Judges target equally the physical health (ECHR, 10 July 2001, Price v. the United Kingdom; ECHR, 7 October 2008, Bogumil v. Portugal; ECHR, 3 March 2009, Ghavtadze v. Georgia) and the mental health of detainees (ECHR, 11 July 2006, Rivière v. France ; ECHR, 16 October 2008, Renolde v. France). Furthermore, judges consider that the detention of an elderly person may pose a problem under article 3. For example, ECHR, 7 June 2001, Papon v. France, (LPA, 20 September 2001, p.14, note E. Boitard); ECHR, 14 November 2002, Mouisel v. France, Rec. 2002-IX (RTDH, 2003, p.1007, note J.-P. Céré).

[36] Although it may be inappropriate to speak of ‘well-being’ in detention, this reference allows the Court to extend the benefit of the protection afforded by article 3 to detainees for whom the physical conditions of detention are objectively unacceptable (insalubrity and overcrowding in particular) when they have an impact on their daily life and general well-being, even if they are not suffering from any actual illness and even if they have not been subject to physical violence requiring emergency medical treatment.

[37] ECHR, 9 Sept. 2010, Xiros v. Greece, § 73 (JCP G, 2011, doctr. 94, chron. F. Sudre).

[38] e.g., ECHR, 28 Nov. 2017, Dorneanu v. Romania.

[39] e.g. ECHR, 2 June 2020, Potoroc v. Romania 

[40] e.g., ECHR, 4 Feb. 2020, Bayram v. Turkey.

[41] ECHR, Xiros, aforementioned, §§ 74-76.

[42] ECHR, 25 Jan. 2011, Elefteriadis v. Romania.

[43] ECHR, 15 June 2006, Moisejevs v. Latvia, § 78.

[44] ECHR, 13 March 2018, Ebedin Abi v. Turkey.

[45] ECHR, 3 April 2001, Keenan v. the United Kingdom, No. 27229/95, § 111.

[46] ECHR, 11 July 2006, Rivière v. France, No. 33834/03, § 61.

[47] ECHR, 17 Nov. 2015, Bamouhammad v. Belgium, No. 47687/13, §§ 121-122 (D. actu, 18 November 2015, obs. C. Fleuriot).

[48] ECHR, 3 June 2003, Pantea v. Romania (JCP-G, 2003, I-160, No. 3, chron. F. Sudre).

[49] The European Court of Human Rights thereby recognises the ‘horizontal effect’ of article 3 of the European Convention on Human Rights.

[50] We see as stated above (II, B) that the European Court of Human Rights also protects the life of a detainee against the risks inherent to their own actions.

[51] ECHR, 21 November 2000, Demiray v. Turkey, §41.

[52] ECHR, Demiray, above

[53] ECHR, 28 September 2000, Messina v. Italy, §61 (JCP-G, 2001, I-291, chron. F. Sudre).

[54] In the same sense: ECHR, 18 October 2005, Schemkamper v. France, § 30; ECHR, 15 June 2006, Kornakovs v. Latvia, § 134.

[55] F. Sudre, “L’économie générale de l’article 3 CEDH”, in C.-A. Chassin (dir.), La portée de l’article 3 de la convention européenne des droits de l’Homme, coll. “Rencontres européennes”, Bruylant, Brussels, 2006, pp. 7-19, spec. pp. 16-17.

[56] ECHR, GC, 9 July 2013, Vinter et al. v. the United Kingdom (Dr. pen., 2013, comm. 165, note E. Bonis-Garçon; RDP, 2014, 785, chron. B. Pastre-Belda ; JCP G, 2013, act. 918, obs. F. Sudre).

[57] ECHR, G.C., 26 March 2016, Murray v. the Netherlands (JCP G, 2016, act. 569, obs. F. Sudre ; AJ Pénal, 2016, 322, note Vasiliki Vouleli & D. van Zyl Smit).

[58] ECHR, 3 June 2003, Cotlet v. Romania (JCP-G, 2003, I-160, chron. F. Sudre).

[59] e.g. ECHR, 24 February 2009, Gagiu v. Romania, § 88-91.

[60] e.g. ECHR, 3 April 2001, Keenan v. the United Kingdom, § 89 (chron. F. Sudre, JCP-G, 2001, I-342); CEDH, 16 October 2008, Renolde v. France, above, § 81.