Dániel G. SzabóThe European Court of Human Rights (the ‘ECtHR’ or ‘the Court’) has excessive jurisprudence on prison conditions, especially regarding the minimum personal space of inmates. The case law culminated in the recent judgement of Muršić, which was decided last October by the Grand Chamber. In this decision the Court addressed the inconsistencies in its jurisprudence regarding the minimum acceptable space. In the Muršić decision the Court ruled that if the personal space goes below 3 square meters, there is a strong presumption of a violation of Article 3 and the judgement resolves important other contradictions also. It was not totally consistent in the recent practice of the Court whether the decisive space is 3 or 4 m2 or that the personal space below this amount is in itself a violation or not. The origin of the 3 m2 threshold was also not clear from the case law of the Court. In this essay I will review the Court’s pre-Muršić case law on minimum personal space and draw attention to the inconsistencies, then I summarize the findings of Muršić.
Regarding prison conditions, no factor on its own is decisive in the Court’s practice upon deciding Article 3 violations. One of the most important factor is, however, personal space of inmates. There were numerous points of disagreements in the jurisprudence of the Court. In a huge number of cases the personal space below 3 m2 was in itself enough to constitute a violation of the Convention.[1] There was at least one case, where the Court stated that the personal space below 4 m2 is in itselfsufficient to establish a violation. This case is a relatively new one (decided in February 2015), therefore it cannot be said that there was an early discrepancy in the Court’s practice, but it was then settled. It was not clear, moreover, where the 3 m2 standard come from. The Red Cross’ international standard is 3,4 m2 per person,[2] while the Committee for the Prevention of Torture’s (CPT’s) minimum standard is 4 m2. As it is apparent, none of these bodies advocated for 3 m2. The standard used by the Court is closer to the Red Cross’ standard, however the Court consistently referred more often the CPT.[3]
In another set of cases, the Court did not rule that the lack of a certain amount of personal space in itself constitutes a violation, but rather said that there was a strong (but rebuttable) presumption of violation below a certain amount of personal space. The general standard here was 3 m2, however there was at least one case where the Court set this threshold at 4 m2. Again, this diverging case was a recent one, decided in January 2015. Factors generally helping to save a prison with less than 3 m2 personal space from a violation of Article 3 could be the brevity[4] and fragmentation[5] of the time spent in a cell providing less than 3 m2 per person; access to fresh air and sunlight;[6] day-time spent outside the cell,[7] or these factors combined.
The Court emphasized in the Muršić Chamber judgement that between 3 to 4 m2 “a violation of Article 3 will be found only if the space factor would be coupled with other aspects”.[8] Similar statements were said in Mironovas.[9] There are decisions in which the personal space exceeded even 4 m2, but the Court found a violation based on similar arguments (lack of access to natural light or air, poor ventilation, or heating, no private toilet or lack of hygiene) as in the cases between 3 and 4 m2.[10] There is nothing in the practice of the Court indicating that there should be a difference between cases with 3 to 4 m2 and in cases where the personal space exceeded 4 m2: the lack of essential circumstances may result in a violation. The so-called Ananyev criterias fit into this approach. In Ananyev the Court established that not only personal space is definitive, but two other factors (separate bed for every prisoner and the possibility of free movement between furniture in the cell) has to be also met to avoid a violation.[11]
There was no case, where the Court accepted the personal space below 2 m2, while in certain cases the Court accepted 2 m2 (especially when the prisoners spent only short periods of their sentence with less than 2 m2 of personal space).[12]
The majority of the Court’s case law suggested that below 3 m2, there is a strong presumption of violation. Judge Siciliano, in a dissenting opinion attached to the Chamber judgement in Muršić laid down a possible interpretation of the Court’s case law by bringing in procedural aspects. This approach was then mostly taken by the Grand Chamber judgement. According to this idea, the strong presumption of violation below a certain amount of personal space (3 or 4 m2) is ‘strong’ because it needs strong factual basis and strong counterbalancing factors to be rebutted. Strong factual basis means that the burden of proof should lay on the Government and should be rebutted only if the applicant does not contest something, or the Government manages to prove the fact beyond reasonable doubt. Strong counterbalancing factors are also listed in the dissent.[13] The question of the legitimacy of the 3 m2 (while the CPT and the Red Cross suggest different sizes) can be overcome by relying on the practice of the Court: the well-established case law of the Court points towards the 3 m2 threshold. Above 3 m2 personal space, the Court’s case law suggests that the presumption is reversed: the non-violation of Article 3 is presumed, but this can be rebutted by proving the lack of elementary conditions. The Chamber judgement found no violation, while the Grand Chamber reversed, and unanimously ruled for a violation.
In Muršić, the Court addressed all three discrepancies (3 or 4 m2; going below this threshold establishes a violation in itself or establishes a strong presumption; the origins of the 3 m2 threshold). The Court expansively recited and elaborated on its previous case law to summarize the diverging decisions and address all discrepancies. Based on its practice, the Court ruled that personal space below 3 m2 is not in itself a violation, but creates a strong presumption of the violation,[14] and emphasized that the “ ‘strong presumption’ test should operate as a weighty but not irrebuttable presumption of a violation”.[15] The Court listed the factors which might rebut the presumption: brevity of time spent without adequate personal space, out-of-cell activities, general appropriateness of the detention facility, time spent in open air.[16] As it is apparent already, the Court made it clear that it accepted 3 m2 as the decisive space[17] and gave reasons for it. The Court referred to its case law and recited that it has to take into account all relevant factors: this is one reason why the Court did not accepted the CPT or national standards.[18] Moreover, the CPT’s aim is future prevention, while the Court works in a backward way: because of the preemptive nature of the CPT standard, it advocates, by its nature, for a higher level of protection than the Court.[19]
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[1] See the cases cited in Muršić (Chamber) §54 and Mironovas §120.
[2] ICRC Water, Sanitation, Hygiene and Habitat in Prisons Supplementary
Guidance, 2012, cited in Mironovas, Partly Dissenting Opinion of Judge Pinto de Albuquerque §10.
[3] 1396 results in HUDOC search for ’CPT’, while only 133 results for ’Red Cross’ on 13 January 2016.
[4] Fetisov and Others v. Russia, 43710/07, 6023/08, 11248/08, 27668/08, 31242/08 and 52133/08 (2012); Dmitriy Rozhin v. Russia, 4265/06 (2012); Vladimir Belyayev v. Russia, 9967/06 (2013).
[5] Muršić (Chamber)
[6] Shkurenko v. Russia, 15010/04 (2009).
[7] Semikhvostov v. Russia, 2689/12 (2014) §79.
[8] Muršić (Chamber) §57
[9] Mironovas §123
[10] See the cases cited in Muršić (Chamber) §57.
[11] §148.
[12] In Fetisov and Dmitriy Rozhin: 2 m2 is sufficient, in Shkurenko: 2,12 is sufficient, however in Sazonov v. Russia, 1385/04 (2008): 1 sq. m. is not sufficient; Logothetis v. Greece, 46352/99 (2001): 1,5 sq. m. is not sufficient.
[13] Muršić (Chamber), Partly Dissenting Opinion of Judge Sicilianos §§9-14
[14] Muršić (Grand Chamber) §124
[15] Muršić (Grand Chamber) §125
[16] Muršić (Grand Chamber) §§130-135
[17] Muršić (Grand Chamber) §110
[18] Muršić (Grand Chamber) §111
[19] Muršić (Grand Chamber) §113
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The views expressed above belong to the author and do not necessarily represent the views of the HAS Centre for Social Sciences.