Information Note on the Court’s case-law No. 121
July 2009
Khider v. France - 39364/05
Judgment 9.7.2009 [Section V]
Article 3
Degrading treatment
Inhuman treatment
Repeated transfers and placement in solitary confinement, and systematic body searches of high-security prisoner: violation
Article 13
Effective remedy
Lack of effective remedy in respect of repeated transfers and frequent body searches of high-security prisoner: violation
Facts: The applicant had been in detention since 2001 on charges of armed robbery as a member of a gang, kidnapping with voluntary liberation within a week, attempted manslaughter of a prison officer, conspiracy and aiding and abetting attempted escape. As soon as he was incarcerated he was registered as a high-security prisoner and subjected to a regime that included numerous changes of establishment, prolonged solitary confinement and systematic body searches. In 2007 he was sentenced to ten years’ imprisonment.
Law: Article 3 – Transfers: In the space of seven years the applicant had been transferred fourteen times to different prisons. While some of the transfers were justified, according to the authorities, by the applicant’s behaviour, they nevertheless seemed to have been part of a special preventive security regime to which he was submitted. According to a memorandum issued by the Minister of Justice in 2003, the purpose of this regime for dangerous detainees was to hinder would-be escapees and their accomplices in the preparation and execution of their plans. However, the memorandum had been annulled by the Conseil d’Etat in 2008. The Court considered that the failed escape attempt in which the applicant had taken part in 2001 was not sufficient to justify subjecting him indefinitely to a strict preventive rotation scheme. Moreover, since 2004 no disciplinary measures had been taken against the applicant by the prison authorities for any aggressive behaviour towards prison staff. The Committee for the Prevention of Torture (CPT), in its 2007 report on France, had highlighted the harmful effects of continually transferring a prisoner from one prison to another. Thus, while transfer might be necessary for the sake of security in a prison, and to discourage escape attempts, in this particular case the applicant’s repeated transfers seemed to have been less justified by such imperatives as time went by. In addition, they were likely to have triggered feelings of acute anxiety in the applicant with regard to adapting to the different prison establishments and the possibility of continuing to receive visits from his family, as well as making it virtually impossible to set up any coherent medical supervision of his psychological condition. That being so, the prison authorities had failed to strike a fair balance between the imperatives of security and the need to provide the applicant with humane conditions of detention.
Solitary confinement: Solitary confinement was not a disciplinary measure and mere reference to organised crime or some unsubstantiated risk of escape was insufficient. Likewise, the classification of a detainee as a dangerous prisoner, or his committing even a serious disciplinary offence did not justify placing him in solitary confinement. In the event of transfer followed by a new decision to place the detainee in solitary confinement, the reasons given should state why the transfer alone did not suffice to guarantee the security of the establishment and the people in it. In this case the prison governor had relied on the acts that had led to the applicant’s incarceration. However, the prison administration had lifted the solitary confinement measure two years earlier. In addition, the administrative court had found that the truth of the information the prison authorities had concerning an escape plan had not been established. In any event, the reasons concerned had ceased to be pertinent from 2004 onwards, as the applicant’s behaviour had no longer been incompatible with ordinary conditions of detention and there was no evidence that any threats had actually been made. Furthermore, the prison authorities had failed to draw the necessary conclusions from the medical certificates advising, for health reasons, against the applicant’s further solitary confinement. In 2007 the CPT criticised the prison authorities’ tendency to treat solitary confinement quarters as a dumping ground for detainees who were difficult to handle, psychologically disturbed, even though access to health care, particularly psychiatric treatment, was worse there. Lastly, the applicant’s solitary confinement had been interrupted without incident, but the experiment had not lasted long as he had been placed in solitary confinement again on arrival in his new prison. At a time when the applicant was being repeatedly transferred from one prison to another, his placement in solitary confinement for such a long period, combined with the deterioration of his psychological and physical health, had to be taken into account in assessing whether the minimum level of severity required for the purposes of Article 3 had been reached.
Body searches: The Code of Criminal Procedure did not specify in what circumstances simple patting down was sufficient or when a full body search was required. However, a circular did explain in what circumstances full body searches should be carried out. Having regard to the applicant’s file, and the fact that he had been singled out for special supervision, full body searches seemed to have been carried out systematically, in proportion with the number of transfers he underwent, the frequency of his placement in solitary confinement or in disciplinary cells, and the number of times he was taken to the visiting rooms. The repetitive nature of the searches, combined with the strict nature of the detention conditions complained of, did not appear to have been justified by any convincing motives of security, law and order or crime prevention, and were likely to create the impression that he was the victim of arbitrary measures. These repeated searches of a detainee who showed signs of psychiatric instability and psychological suffering were likely to have accentuated the feeling of humiliation and degradation to such an extent that they could be qualified as degrading treatment. (See Frérot v. France, no. 70204/01, 12 June 2007, Information Note no. 98.)
The applicant’s conditions of detention, his classification as a high-security prisoner, his repeated transfer from prison to prison, his lengthy solitary confinement and the frequent full body searches he was subjected to all added up to inhuman and degrading treatment within the meaning of Article 3.
Conclusion: violation (unanimously).
Article 13 in conjunction with Article 3 – The applicant was found to have been the victim of a violation of Article 3. His complaints were therefore “arguable” for the purposes of Article 13.
Solitary confinement: The Conseil d’Etat had found that the applicant’s prolonged solitary confinement could be considered grounds for seeking judicial review. The applicant had done so and the administrative court had annulled the measures. The applicant had therefore had an effective remedy.
Repeated transfers: The applicant had produced several administrative court decisions dismissing the actions of detainees who had challenged their repeated transfers, or finding that the transfers were purely internal organisational measures. The effectiveness of the remedy relied on by the Government in respect of the repeated transfers of the applicant from one prison to another was not established. Not until 2007 had the Conseil d’Etat acknowledged that a decision to submit a detainee to a high-security regime was not an internal organisational measure but an administrative decision open to appeal as being ultra vires. In 2008 it had annulled the circular introducing the high-security regime.
Body searches: the applicant’s complaint concerned the frequency of the searches. The only case cited by the Government as a remedy had qualified body searches as unlawful and humiliating in 2006. However, the applicant produced an order given by the president of an administrative court in 2008 stating that a decision to search a detainee, based on the Code of Criminal Procedure, was not open to appeal. It was therefore not established that any domestic remedy existed against a decision to carry out a body search.
The applicant had therefore not had any effective remedies in respect of his complaints under Article 3 concerning his repeated transfers and the frequent body searches.
Conclusion: violation (unanimously).
Article 41 – EUR 12,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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