1. National context

Rate of detention – On 1 January 2016, 66,678 people were incarcerated in France, of which 25% were on remand, 1.1% were minors, 3.2% were women and 19% were foreigners. This is a rate of detention of 100.1 detainees per 100,000 inhabitants. This rate has doubled over 40 years.

This results from an increase in the average length of sentences—11.3 months in 2013 compared with 4.3 months in 1975—which has not been compensated for by a fall in the rate of incarcerations (110.3 intake/100,000 inhabitants in 2013). This continuing development since the end of the nineties can be attributed to the systematising of legal action, abandoning collective pardons and adopting laws that increase the scope of offences and toughen the treatment of re-offenders, with in particular minimal mandatory sentences (now repealed). These measures increased short and medium term prison sentences for offences related to drugs, violence and thefts. The number of detainees sentenced to serve less than three years was 39,124 in 2013 (on 1 January) compared with 15,131 in 2000. We can also note an increase in the length of sentences, particularly for criminal cases: the number of people sentenced to spend between twenty years or life behind bars went from 1,252 in 2000 to 2,384 in 2013.

Physical conditions of detention – With 58,561 places in 188 facilities on 1 January 2016, prison density was 113.8% compared with 104.4% in 2000, and 1,200 people were sleeping on mattresses on the ground. This situation affects in particular remand prisons that hold nearly two thirds of the prison population and where the average density is 136%. 37 facilities had a density of more than 150% and 4 were over 200%.

Whilst adjusting sentences (including partial and provisional release) are underused, the government has adopted a fourth moratorium on individual cells, pushing back its application to 2020. This strategy is a burden on budgets. One billion euros was assigned between 2015 and 2017 to a programme to create 3,200 places out of an overall penitentiary administration budget of €2.4 billion. The construction of new facilities is first conditioned by rationales of security and economies of scale. By restricting the movement of detainees, their independence and human contact, this logic encourages violence, as noted by the CPT when it inspected one of these facilities in 2010.

2. Bodies in charge of prisoner complaints

2.1 Court inspection mechanisms

The French court system is divided into two types of courts, administrative courts and ordinary courts, both of which should have knowledge of prisoner means of redress.

Prison disputes are settled by the administrative courts for disputes pertaining to the operation of the public penitentiary service, i.e. those that concern the relationship between the prisoners and the administration (usually prison or hospital services).

Common law administrative courts (including administrative courts, administrative courts of appeal, and, at the top of the ladder, the “Conseil d’Etat” (French Council of State, abbreviated to CE in this document)) are therefore those that are essentially in charge of protecting the rights of prisoners within the penitentiary establishment. They handle disputes concerning the material conditions of detention, the disciplinary penalties handed down by the administration, the difficulties of access to healthcare, transfers, etc. In the ‘00s, the construction of penitentiary law broadly relied on the courts, with the penitentiary law of 24 November 2009 being summed up as, as far as prisoner rights are concerned, a codification of principles and rights already recognised by the court.

For their part, ordinary courts are competent for disputes pertaining to “the nature and limitations of a sentence handed down by an ordinary court, and whose implementation is subject to public prosecution” (Industrial Court, or “tribunal des conflits” in French, 22 Feb. 1960, Dame Fargeaud d’Epied) or acts that regard the conduct of legal proceedings or that are inseparable therefrom (e.g. CE, 11 April 2011, no. 34621: withdrawal of a visiting permit by the investigating judge, on demand of the administration).

Ordinary courts act in prison-related matters mainly to obtain reduced sentences for the prisoners. Specific training of criminal court judges is required to deal with such sentence reductions (in first instance, depending on the case, sentence enforcement judge or sentence enforcement court; in appeal, Court of Appeal chamber for sentence enforcement; in cassation, only for monitoring the correct application of the law, criminal chamber of the Court of Cassation). Sentence suspension procedures (article 720-1-1 of the French Criminal Procedure Code, CPP) and conditional release procedures (article 729-3 CPP) for medical reasons mean these courts are aware of detention conditions and the healthcare provided to the prisoners. Additionally, these courts may order the withdrawal of sentence reduction rights if a prisoner’s behaviour is inappropriate (article 721 CPP), and approve additional sentence reductions for “demonstrable efforts of social re-adaptation” (article 721-1 CPP).

As regards the prisoners, the Court of Cassation may take into consideration detention conditions in applications for release, where there are “allegations of elements concerning the person in question that are sufficiently serious as to constitute a danger to such person’s physical or mental health” (Criminal Court, 29 February 2012, no. 11-88.441). The scope of this statement is unclear, for lack of positive application. Additionally, article 715 of the CPP indicates that the judges in charge of the criminal case “may give all the orders necessary either for investigation or judgment, which will then be implemented in the prisons”. In this regard, the judge may take a decision to safeguard the prisoner’s rights, such as a transfer to a less overcrowded prison. However, the court does not have to respond to applications, and any non-jurisdictional decisions it makes do not give rise to open debate, are entirely discretionary and not subject to review. This is therefore not a means of redress. Lastly, it should be noted here that the law provides for the court to release a prisoner in the event of a life-threatening disease or in the case of a physical or mental state that is incompatible with prison life (article 147- 1 CPP).

Ultimately, sentence application courts only have limited competence, or residual competence as regards the monitoring of the prison administration. Additionally, as regards prison matters, the Court of Cassation case law pays sparse attention to European law, in particular because of a limited assessment of the reasoning behind the decisions that are submitted to it. As regards principles, its case law is much less significant than that of the French Conseil d’Etat (CE).

Rules pertaining to the division of responsibility mean that administrative and ordinary courts do not review the same disputes. Prisoners therefore generally do not have to decide which court to take their case to.

A prisoner may try to obtain from the ordinary court that it push for said prisoner’s rights to be respected (with, for instance, a transfer to a less overcrowded prison). However, as already indicated, such an intervention is not, from a procedural point of view, organised (the text and scope are both unclear) and the ban in principle applicable to the ordinary court from encroaching on the prerogatives of the administrative courts significantly restricts the authority of such an approach. Such provisions are in place to ensure the proper operation of the investigation, not the protection of fundamental rights. They do not play a role in the matter and the authorities do not claim they do before national and international courts.

This state of being is absurd. In 2000, a legal question on the rights of prisoners came from a report from the First President of the French Court of Cassation, calling for the creation of real means of redress, a mechanism that is independent from the prisons, and the definition by law of the powers of prison administrations to limit the exercise of rights and freedoms in prison.

The Constitutional Council can be instructed for a priority preliminary ruling on constitutionality (“question prioritaire de constitutionnalité” in French, or QPC). This procedure enables an applicant to assert that a given legislative provision in a dispute adversely affects the rights and freedoms that the French Constitution guarantees, and thus obtain its repeal.

However, six years after the entry into force of the QPC, case law broadly indicates a lack of constitutional protection as regards the rights of prisoners: the Constitutional Council only acted on two appeals, the first pertaining to a legislative provision that was no longer in effect[1], and the second pertaining to a provision being redrafted at the time in Parliament[2].

2.2 Other procedures

Non-jurisdictional control mechanisms in place are not considered by national law as means of redress.

2.2.1 The Controller-General of Prisons

i. Description

The Controller-General of Prisons (Contrôleur général des lieux de privation de liberté, or CGLPL) was implemented as an application of the OPCAT in a law dated 30 October 2007. He or she is in charge of “monitoring material and transfer conditions of persons deprived of liberty, to ensure the respect of their fundamental rights”. He or she is competent for prison establishments and all places of deprivation of liberty (custody, alien holding centres, secure psychiatric health units, etc.). The CGLPL has extended investigation powers and can issue opinions and recommendations, which he or she may make public. An activity report must be published annually. Since the CGLPL’s establishment, it has issued a number of opinions on specific topics (overcrowding, religion, IT, usage of videoconferencing, supervised confinement, situation of incarcerated women, etc.), as well as recommendations and visits reports. It fulfils its mandate with a view to presenting recommendations on the general malfunctions of prisons, rather than to handle complaints pertaining to one-off incidents or malfunctions. Additionally, its doctrine is to not interfere in establishments undergoing a “crisis”. Nonetheless, it is in regular contact with the administration to find out information about a prisoner who has lodged a complaint, without such steps being made public. This type of complaints handling resembles mediation.

The CGLPL is appointed “for professional knowledge and skill” by the President of the Republic, for a six-year term that is non-renewable and non-revocable. The CGLPL is assisted by inspection officers, who must be recruited for their skill in the appropriate fields. Throughout the term of such activity, these officers may not conduct any other activity that is linked to the places inspected. In 2015, the Controller-General’s team included 51 people, of which 26 full-time officers and 20 operating on a one-off basis.

ii. Interaction with means of redress

The CGLPL does not have the power to take matters to court. If he or she has knowledge of facts that may lead to the presumption of a criminal offence, he or she informs the public prosecutor’s department. The latter must let the CGLPL know of the steps it takes to follow up on the information provided. Such action from the CGLPL is extremely rare in practice.

Matters can be sent to the administrative judge by a third party so that the prison administration implements the recommendations put forward by the CGLPL (CE, 23 July 2014, OIP, no. 379875). Additionally, reports drafted by the CGLPL can be used to establish facts in matters concerning material conditions of detention, and are taken into account by the judge (see CE, ord., 30 July 2015, OIP, no. 1408289; CE, ord., 22 December 2012, OIP, no. 364584). The judge has also been known to summon the CGLPL for its comments (see CE, ord., 30 July 2015, OIP, no. 364584; CE, ord., 22 December 2012, OIP, no. 364584). Conversely, a dozen decisions have been based on the existence of a visit report drafted by the CGLPL concerning a prison that refused a claimant’s application for his or her detention conditions to be established (see Melun Administrative Court, ord., 10 March 2015, no. 1408289). The direction that case law is taking can be problematic from the point of view of European requirements: the administration is consulted during the report drafting stage, while claimants are not yet in a position to efficiently put forward their point of view about the facts, and obtain an inspection of their personal situation.

2.2.2 The Rights Defender

i. Description

Provided for by the French Constitution and set up in 2011, the Rights Defender (“Défenseur des Droits”, or DDD) oversees the protection of rights and freedoms by the various administrations. The Defender is appointed by the French President of the Republic after hearing the opinions of the competent parliamentary commissions, “for a non-renewable six-year term”. The term is also non-revocable. The Rights Defender can act ex-officio or upon request of any person, either to solve a dispute with an administration (mediation), or to denounce human rights abuses, in particular in the field of “security ethics” (bullying by prison personnel, unjustified full body searches or cell changes, stolen or destroyed possessions, disproportionate use of force, etc.). So far, the DDD has highlighted the non-respect of disciplinary rules and use of force. The DDD submits an annual activity report to the President of the Republic and the Parliament, which it must publish. As well as providing recommendations to the claims submitted, it can lead “any communication and information action that it deems necessary”, conduct research and publish reports on a specific topic, and formulate recommendations. The DDD’s power of injunction could give its decisions a certain amount of compulsory force, but the fact is that it does not use this power means it is not regarded as a means of redress in the definition given by the CEHR.

The DDD is organised into three main sections: child rights, combating discriminations, and “security ethics”. Each section has its own college, comprising volunteer members appointed for their knowledge or their experience. They can be consulted by the Rights Defender on any new issue and cases with a “specific scope” (for instance, in terms of security ethics, matters that have led to death or serious injury).

For its mediation activity, the Defender can count on volunteer delegates who can, in particular, “investigate claims and assist in solving the difficulties identified”. The law provides for one or more delegates to be appointed for each penitentiary establishment. In larger establishments, the delegates are present one or more times during the week. In other establishments, prisoners can ask for an appointment, either by contacting the administration or the DDD. As at 1 June 2015, the DDD numbered 250 paid officers and 397 local volunteer delegates.

ii. Interaction with means of redress

The Defender can present written or oral observations before courts at any point of a procedure, as well as before the European Court of Human Rights. Conversely, the Defender cannot refer cases directly to a judge, but must rather inform the Public Prosecutor’s department of any criminal offence it may be aware of.

While the reports of the Controller-General of Prisons are often used to support claims in disputes concerning material conditions of detention or long-lasting malfunctions, reports from the Rights Defender are sometimes used to support allegations of ill-treatment in detention, and more broadly of procedures concerning specific events before the criminal court or actions for damages before the administrative court (e.g. violent actions of prison special forces: Marseille Administrative Court, 27 May 2014, Alboréo, no. 1203234). These steps, taken by the DDD, when they go beyond the prison inspection report, are one of the few means of obtaining an in-depth investigation from the ordinary courts (see for instance, the conviction of two prison guards for violence, judgment of the Douai Court of Appeal, 4 September 2014, handed down after the case was closed by the Public Prosecutor’s department).

3. Means of redress

3.1 Accessibility of the means of redress

– simplicity of the procedure

For administrative courts, the procedural rules that the prisoner claimants need to adhere to validly take matters to court are not very restrictive. Hiring a lawyer is only compulsory for certain procedures (matters of liability, disputes taken to appeal or cassation).

To be receivable, actions for annulment must include conclusions pertaining to the matter brought to court (i.e. the annulment of a contested decision and potentially an injunction), the facts and legal arguments. Claimants must demonstrate that the act in question is illegal, not only that it is unfavourable to them. Three copies of the application and supporting documents must be submitted, which alone can pose the issue of access to a photocopier.

Generally, causes for inadmissibility cannot be accepted if the court registry has not asked the claimant to rectify his or her claim. Thus, if a letter is sent by the claimant to the court but does not contain the appropriate information, then the court registry will send a letter back to the claimant indicating the information that needs to be mentioned.

As regards the hypotheses pertaining to what European law qualifies as “preventive means of redress” (redress that aims to prevent or stop a given treatment), the technical difficulty, which can, in certain cases, be very serious, in reality lies more with the need to identify the appropriate procedural means than with the formal requirements needed to refer a matter to court.

Several types of procedures co-exist, in particular when the court must act as a matter of urgency (summary proceedings), where time has not been an ally. The interaction of the various means of redress with one another is highly complex. Hiring a lawyer, which underlies this system, would help analyse the procedural offer and suggest the measure that is most suited to each particular case. Yet, such legal representation is far from being the norm in cases brought to court. Moreover, preventive means of redress that aim to stop improper detention conditions, and which require a highly precise handling of the applications, are taken in charge by, or supported by, the Observatoire international des prisons (OIP), and not the prisoners individually.

For their part, compensatory remedies must meet more restrictive conditions (need to file a prior compensatory claim with the administration, with the compulsory presence of a lawyer, and to specify the liability regime – strict liability or liability for negligence). And yet, it is mainly in this field that disputes concerning material detention conditions have arisen. Lawyers have taken them on, thanks in particular to “dispute kits” made available to them, first by the Syndicat des avocats de France, then by the Conseil national des Barreaux in 2008.

Matters taken to ordinary courts are not subject to any particular formality and can be filed with the prison registry. However, appeals against a court’s decision to withdraw sentence reduction rights are subject to a highly problematic deadline of 24h.

– legal aid

Where funds are insufficient, the person accused or who brings a procedure before the court has right to legal aid, which can be full or partial, according to a financial resources scale. As at 1 January 2015, the ceiling of monthly resources is set at 1,000 euros for full legal aid. Beyond that threshold and up to 1,500 euros, partial legal aid ranges from 85% to 15%. These thresholds are increased by 180 euros for each of the claimant’s first two dependants, then 114 euros for each following dependant. In practice, prisoners can claim legal aid without justifying a lack of financial resources, by simply providing a “certificate of attendance”. The application is made on a standard document, which must be sent to the court in question, sometimes via the lawyer. This seven-page document poses comprehension and writing issues for a number of prisoners. Additionally, cases for which legal aid can be requested are not always known, and neither is the possibility of simply indicating the claimant’s imprisonment to justify the application. These elements make it critical for the prisoners to be able to hire or have effective access to writing and legal intermediaries, be they prison staff such as social workers and probation officers, or NGOs such as through free legal advice bureaus.

Once filed, the application is investigated by the legal aid bureau before the court. Obtaining legal aid does not apply to any single procedure: prisoners may make as many requests for legal aid are there are procedures brought by or against them. If the request is approved, the lawyer’s fees are paid by the State either in full or in part. Beneficiaries may choose their lawyer so long as the latter agrees. The amount of the lawyer’s fees in the context of legal aid is set by the State. The unit of value (UV) is of €26.5 in 2016. Sentence reduction cases are paid 4 UV, i.e. 106 euros (plus 1 extra UV for adversarial debates that take place in the prison establishment); 8 UV (212 euros) for summary proceedings before administrative courts; 20 UV (530 euros) for substantive cases before the administrative courts. The contribution of the State as regards disciplinary procedures is 88 euros.

Several of the lawyers questioned[3] highlighted the fact that these amounts are insufficient when compared with the amount of work involved in ensuring a satisfactory defence. The fact that prisoners have no freedom of movement means their lawyers must travel to the detention centre whenever they need to conduct an interview, which adds considerably to the cost of such cases. One lawyer explained that the minimum preparation of a sentence reduction case required at least two interviews. Considering the travel time, the entrance into the prison and the waiting time before interviewing the prisoner-client, she had calculated that each interview took up a half working day; to which one needs to add the time necessary to draft the conclusions. The amount of 97 euros provided by legal aid covers only a minute part of these costs. As a young independent lawyer, she had decided to no longer accept legal aid cases for sentence reductions in order to safeguard the viability of her legal practice. Disciplinary matters, however, are less of a financial burden. Disciplinary commissions often hear several prisoners one after the other, for which a same lawyer – except where there is a conflict of interests – can be appointed. In most cases, the lawyers only familiarise themselves with the case when on the premises, and only discuss the matter with their client for some ten minutes, during the breaks between hearings.

On 16 December 2014, the French ministry for justice launched a series of consultations on legal aid, prior to what the minister announced as the reform of a “system on its last legs”. This political desire follows on from a parliamentary report that highlighted the insufficient remuneration considering the cost of the legal service provision, and the unequal contribution to the legal aid service by lawyers (57% of assignments are taken on by 7% of lawyers, while 58% of lawyers never take on such assignments)[4]. It appears that legal aid is most often provided by young lawyers in search of clients. In a decree dated 30 December 2015, the French Conseil d’Etat (CE) considered that the government could leave the lawyers to pay a part of the costs of implementing legal aid.

3.2 Characterising features of the procedure

– promptness

Actions for annulment brought on grounds of ultra vires (abuse of authority) cannot meet the requirement for promptness set by European case law, given the lead-times in which such a case is generally investigated (between 7 and 30 months). Prisoners may, of course, take their case to the administrative court of summary proceedings to maybe obtain, in the short term, an injunction or the suspension of a decision. Nonetheless, despite being as pragmatic as possible, the administrative court has so far been very reticent in fully resorting to interlocutory proceedings, which would make it possible to quickly neutralise decisions rendered by the administration and that have serious adverse effects on the interests of the users. Yet, in 2000, the administrative court had been clearly invited to use interlocutory proceedings by the commission led by the 1st President of the French Court of Cassation, as well as by the inquiry committee of the French National Assembly (Assemblée Nationale).

Indeed, according to case law, the urgent nature of such cases requires that claimants demonstrate the existence of a prejudice that impacts their interests “sufficiently seriously and immediately”. In concrete terms, it requires that prisoners be in a position to present medical certificates asserting an impact on their personal state of health, and whose seriousness must be appreciated by the court[5]. In its decision of 31 October 2008, the Conseil d’Etat (CE) highlighted, in an obiter dictum, that the legality of isolation measures may be contested before the administrative court, “including in procedures of interim relief”, thus seeming to invite lower courts to soften their appreciation of interim relief conditions in this field[6]. And yet, the decisions handed down in interim relief proceedings after this landmark decision have not followed suit. For instance, the Paris Administrative Court (Tribunal Administratif de Paris) dismissed, for lack of urgency, the case brought to it by a prisoner subject to extreme detention conditions, i.e. social and sensory isolation for over five years[7].

Appreciating a matter’s urgency in interim relief proceedings requires analysing the adverse effects of the decision on the physical or mental health of the prisoner. Cases can be dismissed without any attention being paid to the issue of deciding whether the measure was justified. In other words, according to case law, it is not urgent to suspend a measure that has been unjustifiably applied to a prisoner if such measure does not very clearly have any adverse effects on the prisoner’s health… With its restrictive understanding of the concept of urgency, the interim relief court can thus uphold the application of decisions for which it nonetheless refuses to verify the reasons, even if such reasons are known to be unfounded. Applicants must therefore wait for the decision on the substance of the matter handed down months, sometimes even years, later, as part of the main procedure. “With this case law policy, which leads to the en masse dismissal of interim relief matters for lack of urgency without any appraisal of the legality or the reasons for the decisions questioned, the administrative court (…) defaults on its positive obligation to protect against inhumane or degrading treatments, which is required of all State authorities[8].

To counter this criticism, some recent decisions of the Conseil d’Etat (CE) have tried to establish the petition for the protection of fundamental rights and liberties (référé-liberté) as a common law procedure for situations likely to be in violation of articles 2 and 3 of the ECHR (CE, December 2012, OIP), in order to make use of this procedure more commonplace. However, steering disputes towards this fast-track procedure has led, to a certain extent, to a dead end: the courts cannot appreciate, within the imposed 48h lead-time, the measures to be taken to solve often highly complex situations (see below). Additionally, the court’s position has not changed as regards urgency for measures such as isolation or disciplinary punishments (see below).

– adversarial

The procedure before administrative courts is adversarial. The Court Registry ensures the transmission of reports and documents. The court cannot base its decision on elements that have not been brought to the attention of either party. In some cases, the court took into account the statements of the administration without production of the supporting documents for such, the administration invoking safety reasons (Paris Administrative Court, Colonna, 23/ 12/2014). Such decisions remain exceptional.

Interim relief proceedings in administrative courts give great importance to oral information. When information brought forward during the hearing by the administration is questioned, the judge generally extends the investigation so that the administration can produce the appropriate supporting evidence.

Whether during interim relief proceedings or regular means of redress, the prisoner is not sent to court, except in a few very rare cases. Videoconferencing is not widely used either, while it is mostly in place for criminal procedures. Applicants can therefore neither give an account of the situation they are experiencing or of events they have endured. Their lawyer must therefore act as relay.

For further information about what is adversarial before sentence application courts, see below.

– establishment of the facts

A. Burden of proof (administrative judge)

As far as compensatory litigation is concerned (or compensatory remedy in EU terms), authorised commentators indicate that “the burden of proof usually falls on the claimant[9].

In disputes concerning the annulment of administrative decisions (in preventive remedies), the general principle set by case law (in a ruling that does not concern prisons) provides that “the judge (…) must form his own conviction on the points of dispute given the elements brought to the case by the parties. Although he cannot dismiss allegations that he deems to be inadequately supported, he cannot ask the claimant to provide further proof of the facts set forth. Before handing down his decision on a claim with serious allegations that are not disproved by the elements produced by the defending administration, the judge must implement his general instruction powers and take all legal measures that may provide him with those elements that may assist him in forming his belief, in particular by requiring from the competent administration that it produce all documents likely to enable the judge to verify the claimant’s allegations” (CE, 26/11/2012, Cordières, no. 354108). The claimant is therefore expected to make sufficiently supported allegations in any given case.

A sufficiently detailed application will thus make it possible to initiate the contentious debate. The administration must counter its opponents’ arguments, drawing on supporting evidence. Additionally, the judge’s general investigation powers mean he can take “all the measures that can provide him with (…) those elements that may assist him in forming his belief”, i.e. requests for documents, explanations, or “response” to the grounds invoked.

The impact of these rules of evidence in prison disputes is variable, depending on the issues in question.

The court has been relatively protective as regards safety measures, isolation in particular. Its appreciation of the matter usually pertains to a manifest error of facts or of legal characterisation. The court often demands concrete justification to highlight the real and current nature of the threat, without simply relying on suspicions of prison breakout. Information pertaining to attempted breakouts has been deemed insufficient in the past, where such “information is imprecise and whose soundness has not been established” (Paris Administrative Court, 15/03/2007, Cyril Khider; 12/05/2005, and Paris Administrative Court of Appeal, 5 June 2008, Hakkar, No. 07PA00126) or “where circumstantial evidence is lacking that could establish a real risk to the safety of people or to internal order” (Paris Administrative Court, 18 April 2008, Battini, no. 00606780/7; see also for lack of supporting evidence, Paris Administrative Court, 17/12/2010, Ferrara). It does however occur that the court simply validates the administration’s statements, even when they are contradicted by supporting documents brought to the case at a later time (Paris Administrative Court, 23/12/2004, Colonna).

In disciplinary matters, the burden of proof resting on the administration is often purely a matter of form (see below).

For liability actions pertaining to matters of suicide or deaths in prison, it seems complicated to act before the administrative court without first having led a criminal investigation, where protagonists will be heard, the order of facts established, etc. This represents an amount of investigative work that is incompatible with those means available to the administrative court.

As regards disputes pertaining to material conditions of detention and lacking healthcare, the contentious debate is often made clearer by one or more experts’ reports.

The law offers claimants a number of possibilities to support their statements with technical elements provided by specialists. A prisoner may resort to several emergency proceedings to this end.

B. Means of proof (administrative court)

Preliminary court-ordered report (“référé-constat”)

The preliminary court-ordered report makes it possible to obtain from the judge the swift appointment of an expert to observe facts in order to collate all elements of proof with a view to launching a procedure, generally an action for damages. The expert simply commits to the report all facts observed in situ, without giving an opinion on the appropriateness of the procedure considered. It is often a question of having third party confirmation of the state of the cell and/or other aspects of material conditions of detention (lack of disabled access to certain sectors of the prison, state of the prison’s common areas, etc.). The application must be clear and precise.

The prisoner does not have to justify the urgency of a situation, even though the court rules relatively quickly (a few weeks). Given case law, the application is unnecessary if the facts can be observed in another way or if they are already known (for instance, if the application for outside observation concerns the material state of the cell when it, or a similar and neighbouring cell, has already been the subject of an expert’s report or a written observation (CE, 26 January 2012, no. 349874, CE 30 January 2012, no. 350301)).

Increasingly, the court refuses the application when the CGLPL has already drafted a report about the establishment. The same applies to applications concerning past facts (release or transfer of the prisoner), which is problematic as regards providing evidence to such past facts.

However, written observations are useful if it appears that the object of the previous report was not the same as that requested by the claimant and/or that they were not carried out on the same or similar premises during the same period of imprisonment (CE, 21 March 2012, no. 353511). Similarly, the interim relief judge has acknowledged the usefulness of a report establishing whether the configuration of telephone booths made available to prisoners guaranteed the confidentiality of communications (Rennes Administrative Court, 16 Oct. 2012, no. 1202578).

If the application is rejected, the decision is open to appeal and judicial review.

Interlocutory application for an expert witness report (“référé-expertise” or “référé-instruction”)

The interlocutory application for an expert witness report enables the court to “order an expert’s report or investigation that it deems necessary”. Its scope is broader than the preliminary court-ordered report in that it can lead to the ordering of investigative measures that are likely to provide the trial judge with objective facts and a technical appreciation of such facts. In practice, this procedure is often used to obtain the appointment of an expert who does not simply describe or observe the facts. He can collate documents, visit the premises, audition witnesses, determine the causes or consequences of a situation, assess damages, etc.

The court can order an expert’s report to determine whether a prisoner suffering from cancer requires a specific diet (Châlons-en-Champagne Administrative Court, 6 July 2006, no. 0601137), whether the imprisonment conditions of a person having committed suicide were compatible with his or her state of health, whether measures had been taken to prevent a suicide and whether the health of such person was appropriately monitored (Melun Administrative Court, 29/06/2012, no. 1202707/1, Caen Administrative Court, 22/07/2011, no. 1101201).

If the application is rejected, the decision is open to appeal and judicial review.

Protective summary procedures (“référé-mesures utiles”)

Protective summary procedures can be used for reasons similar to those of the interlocutory application for an expert witness report, except that they must demonstrate situations of urgency.

The procedure can be used to obtain an administrative document, insofar as it has not been the object of a refusal (CE, 8/09/2008, OIP, no. 318288), and the appointment of an expert instructed with reporting on the material state of a given cell (CE, 15/07/2004, no. 265594).

C. Situation before the criminal court

The Court of Cassation offers the possibility of asserting a prisoner’s right to proper conditions of detention. Where a prisoner applies for early release (see above) because his or her detention conditions adversely affect his or her state of health, the establishment of the facts is entirely in the hands of said prisoner. The French code of criminal procedure does not provide for the investigative court to use its powers with a view to establishing the truth (transport to the premises, expert report, etc.) as regards verifying conditions of detention. Neither does it provide for the way in which said powers interact with the prison administration’s assignment to conduct an annual visit to all prisons in its area, as indicated in article 10 of the penitentiary law dated 24 November 2009. There is no “established judicial practice” as regards the application of the said provisions to protect the rights of the prisoner. Only two isolated decisions have been taken in this regard.

As regards suspended sentences for health reasons (see below), the situation of the interested party from a medical point of view, as well as conditions of detention, are in principle established (except in cases of emergency) on the basis of a medical expert report. Conditions for conducting such expert report are deemed highly problematic by the CGLPL and the “Santé Justice” report submitted in November 2013. This situation has justified the move from two expert reports to one in the French code of criminal procedure, in the law dated 15 August 2014.

3.3 Preventive remedies

Before administrative courts, the powers of judges differ depending on the type of remedy.

The most well-known is a case brought for “abuse of authority” (ultra vires or action for annulment), in which the judge must verify the legality of an administrative decision and rule on its annulment. If there is an urgent situation, interlocutory proceedings can be brought to suspend an illegal decision (“petition for suspension”, “référé-suspension” in French), to stop a serious and clearly illegal breach of fundamental rights and freedoms (“petition for the protection of fundamental rights and freedoms”, “référé-liberté” in French), or to remedy a harmful situation to the prisoner (“protective summary procedures”, “référé-mesures utiles” in French). Prisoners can apply for compensation for a loss suffered as a result of an improper decision or action of the prison administration in interim proceedings (“interim payment”, “référé-provision” in French) or in main proceedings (“compensatory remedy” or “liability claim” – “recours en responsabilité” in French).

Although elaborate, and with a rather significant amount of case law to draw on, the redress system presents clear limitations regarding detention conditions in particular.

3.3.1 Remedy for ultra vires

i. Cases brought on grounds of ultra vires

Prisoners can apply for the annulment of a regulatory act, i.e. a general and impersonal act applicable to an abstract audience (decree, circular, internal regulation, memorandum, etc.), or of an individual decision concerning them personally (response to an application made by the prisoner or a measure taken spontaneously by the administration). The scope of acts likely to be appealed for abuse of authority has expanded greatly, in particular since the middle of the 2000s (see above).

The administrative judge is not legalistic and can deem that a decision exists even if it has not been formalised in writing (non-written decision to implement full body searches after visits: Marseille Administrative Court, OIP, 13/03/2012, no. 1106683, continuous transfer regime, denied by the administration: CE, 14/12/2007, Payet).

ii. Powers of the judge in cases brought for ultra vires

Although the three judges making up the formation of the court rule on the annulment of the measure in question, such measure is removed from the regulatory set-up, in principle retroactively (it is deemed to have never existed). The formation of the court may however decide, on an exceptional basis, when the safeguard of the public interest is at stake, that its decision will only be applicable in the future.

Depending on the reasons stated, the judgment may require that the administration comply with the application that was addressed to it or that it review said application. Under certain conditions, the court may also order the administration to take specific measures that are essential to executing the annulment that it ruled (art. L.911-1 French code of administrative justice). The judgment is ordinarily rendered within one year. Swifter legal redress means may be used to quickly stop a contested treatment or decision.

3.3.2 Interim suspension ruling (“référé-suspension”) (Art. L.521-1 of the French code of administrative justice)

The interim suspension ruling is the suspension of enforcement of an administrative decision. The application is generally reviewed in the month following its filing.

Four conditions must be met to obtain the suspension.

In the context of a case brought for ultra vires, the contested decision must have been the object of a separate annulment application, made prior to or at the same time as the interim suspension ruling application.

The claimant must then demonstrate to the judge the urgency of ruling the suspension of the contested decision. Urgency is accepted when the contested decision “poses a sufficiently serious and immediate threat to the public interest, the claimant’s situation or the interests the claimant is defending”. Urgency can be inferred from the combination of two criteria: the seriousness of the harm caused by the decision on the situation and/or the interests of the prisoner on the one hand, and on the other that this harm is current or imminent. The judge’s appreciation of the seriousness of the harm is global and pragmatic, and depends on the circumstances of the case. In particular, the judge must put in the balance the public interest that may advocate the continued enforcement of the contested decision, and the urgency for the claimant to see the decision suspended.

In penitentiary disputes, the following have been considered as situations of urgency: the prison management’s decision to implement full body searches to all prisoners leaving the visiting room (Poitiers Administrative Court, OIP, 24 January 2012, no. 1102847); the prison management’s decisions to suspend, for four months, the visiting rights of a prisoner’s partner, who was the only person able to visit regularly, with their children (Lyon Administrative Court, H., 7 July 2011, no. 1104194); the decision to subject a prisoner to continuous enhanced surveillance by agents in riot gear (Versailles Administrative Court, D. and OIP, 13 Sept. 2005, no. 0507047). The following were not regarded as constituting a situation of urgency: withholding an IT magazine (Caen Administrative Court, 29 December 2004, no. 0402639); extending the isolation regime to a prisoner, considering the lack of sufficient seriousness of the health concerns put forward (CE, 26 Jan. 2007, no. 299267); the application to a prisoner of a night surveillance regime (CE, 23 July 2014, no. 379602).

The claimant must also prove that there exists doubt as to the legality of the contested decision. For this condition to be met, the judge must consider that the court handling the main procedure will likely annul the contested decision. The decision of the interim relief judge shall be without prejudice to the solution rendered by the court.

Lastly, the interim suspension ruling application must be filed before the contested decision is enforced. The judge will otherwise consider that there is no more reason to rule on the decision.

The decision suspension is necessarily temporary: it stops at the latest at the date on which the judge rules on the application for abuse of authority.

Where the application is dismissed, the claimant can appeal in cassation before the French Conseil d’Etat (CE).

3.3.3 Petition for the protection of fundamental rights and freedoms (“référé-liberté”) (art. L.521-2 of the French code of administrative justice)

The petition for the protection of fundamental rights and freedoms (“référé-liberté” in French) means the interim relief judge can order “all the measures necessary” to safeguard a fundamental freedom. The application is reviewed within 48h by the interim relief judge.

The petition may be brought against a decision made by the administration, as well as against its behaviour or an action. It does not need to be preceded or doubled by a case for ultra vires. However, it must demonstrate that the administration is seriously threatening, or likely to seriously threaten, a fundamental right or freedom in a clearly illegal manner.

The concept of “fundamental rights and freedoms” does no cover all rights and freedoms, only those considered by the judge as being essential and particularly protected. They are often rights or freedoms established by the French Constitution or by international human rights conventions. But, for the administrative judge, the exercise of rights and freedoms by the prisoners remains “subordinate to the restrictions inherent to their detention”. Thus, it has been ruled that the violation of the right to the freedom of assembly could not be invoked if the prison administration refused the organisation in its establishment of political debates prior to the referendum on the “European Constitution” (CE, OIP, 27 May 2005, no. 280866).

To date, the following have been regarded as “fundamental rights and freedoms” in prison disputes: the right to maintain family ties (CE, 27 May 2009, no. 322148); the right to privacy (CE, 26 Oct. 2011, no. 350081); the right to vote for prisoners enjoying their civic rights (CE, OIP, 27 May 2005, above); the right to human dignity (CE, A. and OIP, 20 May 2010, no. 339259); the right to free and informed consent by patients as regards medical care provided to them (CE, Minister of Justice, 8 Sept. 2005, no. 284803); the right to be free from inhuman or degrading treatment deriving from article 3 of the CEHR (CE, A. and OIP, 20 May 2010, above); the rights to defence (CE, 20 Jan. 2011, no. 345052).

Unusually, but possibly an end to enhance the right, the French Conseil d’Etat (CE) has decided that the right of prisoners to see their situation treated according to the rules of competence and procedure (CE, 30 July 2015, no. 392100) set by the French Code of Criminal Procedure constituted a fundamental right and freedom. The case concerned a transfer application driven by allegations of reprisals on the applicant, who had filed a complaint against prison personnel and reported experiencing harassment from such personnel’s colleagues. The transfer application had not been reviewed according to the administration’s internal procedure. The interim relief judge of the French Conseil d’Etat (CE) considered that there was a clear violation of the applicant’s “fundament freedom”.

Questioning the respect of a fundamental right or freedom is not enough to win the case in a petition for the protection of fundamental rights and freedoms. The harm must be serious and clearly illegal. This is the case only if the violation of the rule of law by the administration was particularly blatant and is not debatable.

Lastly, applicants must demonstrate the need for extreme urgency. In practice, they must establish that the violation of fundamental freedoms is such that a protection measure is necessary within 48 hours.

The particular urgency of the petition for the protection of fundamental rights and freedoms has, for instance, been retained in prison disputes to announce measures aiming to improve material detention conditions that are deemed contrary to human dignity (CE, 22 Dec. 2012, OIP, no. 364584); to suspend the restriction of visiting rights for the spouse and children of a prisoner requiring hospitalisation and end-of-life care (Caen Administrative Court, 15 July 2011, no. 1101513; Melun Administrative Court, P. and OIP, 30 Oct. 2006, no. 067067/2); to suspend the transfer to the prison’s disciplinary quarters of a prisoner who had tried to commit suicide a few days earlier (Grenoble Administrative Court, X. and OIP, 16 Dec. 2009, no. 0905563); to suspend the full body search regime applied every day to a prisoner placed in an isolation cell (CE, 20 May 2010, Minister for Justice v/G. and OIP, no. 339259) or to all prisoners of an establishment when leaving the visiting room (CE, 6 June 2013, OIP, no. 368816). Conversely, ruling on an application for the suspension of a full body search performed once every fortnight after the applicant received the visit of his parents in the visiting room, the judge dismissed the application considering that “the contested measure was not sufficient to establish a situation of particular urgency that justified a decision by the interim relief judge within 48 hours”. (CE, D., 9 Sept. 2011, no. 352372).

The judge of petitions for the protection of fundamental rights and freedoms must in principle only rule on interim measures, even if, in practice, the judge can take some liberties with this rule. The procedure for petitions for the protection of fundamental rights and freedoms should only be applied in exceptional cases, with the petition for suspension (“référé-suspension”) being often better suited.

When the judge in the administrative court has dismissed an application without holding a hearing, citing reasons of evident groundlessness, his decision can be appealed in cassation, in a procedure that may last several months. If the application is dismissed after holding a hearing, the parties may appeal before the French Conseil d’Etat (CE), which reviews the case within the next 48 hours.

3.3.4 Protective summary procedures (“référé-mesures utiles”) (art. L.521-3 of the French Code of administrative justice)

Under the protective summary procedure (“référé-mesures utiles”), the judge can be asked to order all “useful measures without obstructing the enforcement of another administrative decision”. The judge renders a decision within one month.

The “useful measures” must be provisional or precautionary. The procedure can thus only be used to request the annulment or suspension of an administrative decision. It can only be used to remedy a harmful situation that is not the result of the enforcement of an administrative decision, or to prevent the realisation of imminent harm.

The protective summary procedure can thus be used to obtain measures that guarantee the confidentiality of calls made by the prisoners to their lawyer (CE, 23 July 2014, OIP, no. 379875); obtain the carrying out of works to guarantee the safety of prisoners and prison personnel, as well as the dignity of detention conditions at the Marseille prison (Marseille Administrative Court, 10 Jan. 2013, OIP, no. 1208146); obtain from the prison administration that it end the malfunctions of an electronic bracelet (CE, 26 Oct. 2011, no. 350081); obtain precautionary measures that aim to guarantee the confidentiality of medical care provided to prisoners (CE, 24 July 2009, Haese and OIP, no. 324555).

However, it cannot be used to “hinder the enforcement of an administrative decision”. The judge therefore refuses, for instance, to order the administration to change a prisoner’s cell allocation or to close down buildings that are substandard. Indeed, hindering the enforcement of allocation decision in a given establishment would “overstep the measures authorised by the provisions of article L.521-3 of the French code of administrative justice[10].

Another condition for resorting to protective summary procedures is the justification of a urgency. This is appreciated in the same way as in petitions for suspension (“référé-suspension”). One must then establish that the measure applied for is useful, in that it appears necessary to stop the prejudice or uphold the rights of the applicant. Lastly, the measure applied for must not hinder the enforcement of an administrative decision. If the violation suffered by the applicant is the consequence of the enforcement of an administrative decision, the applicant must then turn towards an interim suspension ruling (“référé-suspension”). If there is a serious and clearly illegal violation, the applicant must prefer a petition for the protection of fundamental rights and freedoms (“référé-liberté”).

In two recent decisions, the French Conseil d’Etat (CE) has doubly limited the scope of this procedure.

It first considered that the court could not order the competent authority to take regulatory measures, including measures pertaining to the organisation of service provision entrusted to it”. It therefore refused to order the administration to implement, within a prison, a consultative committee of prisoners and a register of grievances on issues encountered during their everyday life and on their detention conditions (CE, 27 March 2015, OIP-SF, no. 385332).

The Conseil d’Etat (CE) also ruled that, considering the subsidiary nature of the protective summary procedure, the judge could not, in this context, order the measures requested when their effects could be obtained through a petition for the protection of fundamental rights and freedoms or an interim suspension ruling. This procedure, which had opened up interesting prospects for penitentiary dispute resolution, is now restricted to a very limited field. The judge in protective summary procedures is “in some ways, the judge for administration shortcomings in urgent situations, when a fundamental right or freedom is not at stake[11].

Where the application is dismissed, the claimant can appeal in cassation before the French Conseil d’Etat (CE) (Conseil d’État).

3.3.5 Relevance to structural issues

When faced with the question about the system’s ability to solve structural issues, essentially those of overcrowding, one must review the procedures brought before ordinary and administrative courts. It is necessary to specify from the outset that such procedures only concern prisons because of a numerus clausus that is strictly applied in prisons, and because, in virtue of sharing rules, the administrative judge cannot know the allocation of a prisoner to a specific prison or order his transfer. Cases brought before ordinary courts

Redress using criminal law, as provided for by the French Criminal Code, for cases concerning accommodation conditions that are contrary to human dignity, is not available to prisoners (see Canali v. France, 25/04/13 no. 40119/09, § 39). The Court of Cassation has ruled, without providing any further explanation, that reported improper detention conditions “do not enter into the provisions of article 225-14 of the French criminal code, and can therefore not be classified as criminal” (Crim., 20 Jan. 2009, no. 08-82807). Prisoners may therefore only take release applications to ordinary courts, as provided for by articles 148 et seq. of the French code of criminal procedure, and whose conditions of enforcement were set by the judicial chamber of the supreme court in a procedure that led to the finding of a breach by the ECHR in the Yengo v. France case.

To rule on a release for reasons of material conditions of detention, the Court of Cassation demands that the applicant put forward “distinctive [personal] elements that are sufficiently serious as to be a danger to the applicant’s physical or mental health” (Crim., 29 Feb. 2012, no. 11-88.441). Conditions that are objectively contrary to human dignity[12] cannot justify release. Only where “personal elements” show that detention conditions represent a danger to the applicant’s physical or mental safety can such detention conditions justify release.

This solution was confirmed and specified a few months later. The Court of Cassation approved an appeals court for having dismissed the arguments of a person in precautionary detention. The appeals court had noted that, in a medical expert’s report, the applicant’s recent pneumonia could not be “directly related to the detention conditions in Nuutania”, that the applicant was under medical treatment that is habitually provided by the medical service for such cases, and that, in the absence of any other medical statement, this prisoner had no personal elements that were sufficiently serious as to adversely affect his physical or mental health (Crim., 3 Oct. 2012, no. 12-85.054). It seems, therefore, that aggravation of a prisoner’s state of health must be attributable to the detention conditions if they are to be taken into account by the judge.

In the Yengo v. France case, the ECHR ruled that the appeal opened by the Court of cassation was not an effective means of redress. Although the Court of cassation had not ruled out that an application for release may constitute a means of redress to end a detention contrary to Article 3, it nonetheless conditioned this possibility to the serious threat to the physical or mental health of the prisoner, which the conclusions reached by the CGLPL had not been able to prove. Difficulties encountered in bringing proof of personal suffering and, implicitly, the too-high threshold for triggering the judge’s intervention (serious threat to the applicant’s state of health), are not satisfactory in regard to the requirements set by Art. 13 Cases brought before administrative courts

The number of disputes pertaining to detention conditions has increased noticeably in compensatory actions, through lack of effective preventive means of redress. Procedures often concern cases of ultra vires and emergency interim procedures (art. L.521-1 to 3 of the French Code of Administrative Justice). Annulment appeals have been used, unsuccessfully, to obtain the censure of a decision that placed a prisoner in conditions contrary to those stipulated in article 3[13], the closure of dilapidated premises[14] or their bringing up to standard[15]. A decision that went the opposite way was rendered by the French Conseil d’Etat (CE), seven and a half years after the request was made to close down a disciplinary quarter (CE, 30 December 2014, OIP, no. 364774).

More generally, it does not appear that the administrative judge has ever rendered an annulment decision whose object and effect were to remove a prisoner from material conditions that were contrary to Article 3. Regardless, lead-times are approximately one year for this type of procedure, with the Court highlighting that it therefore cannot be used in urgent cases[16].

Decisions rendered in petitions for the protection of fundamental rights and freedoms and in protective summary procedures demonstrate the inability of procedures brought before the administrative courts to solve the structural issue of overcrowding.

In petitions for the protection of fundamental rights and freedoms (“référé-liberté”), the Conseil d’Etat has ruled that the dilapidation of the Marseille les Baumettes prison justified the injunction made to the administration to implement various upgrade works[17]. However, the conditions for the involvement of the judge make this means of redress tricky, so much so that it has not been used since. Indeed, the claimant must first establish the existence of a serious breach of Article 3. In other words, there must be no doubt as to the grounds of the grievance. Therefore the procedure doesn’t satisfy the requirements in terms of sharing the burden of proof[18]. Then, the claimant can only claim for measures that are likely to be pronounced within the 48h lead-time afforded to the judge to rule, in other words, there can be no in-depth feasibility examination.

Although the judge has the power to “order all the measures necessary for the safeguard of a fundamental right or freedom”, the situation still needs to enable “the possibility of usefully taking these safeguard decisions within 48 hours » (CE, 22 Dec. 2012, OIP-SF, above). Additionally, “the safeguard measures ordered (…) to stop or reduce a danger deriving from the action or failure of the administration must be effective within a very short time” (CE, 13 August 2013, OIP no. 370902). In other words, the judge can only announce ad hoc measures with immediate effect on the risk to be neutralised and not long-term measures or measures of a certain importance that require an in-depth feasibility analysis, and which aim to resolve a complex and/or structural malfunction.

In this respect, all measures obtained at the Marseille Les Baumettes prison by the French section of the OIP in a petition for the protection of fundamental rights and freedoms concerned certain ad hoc aspects of material detention conditions (lighting, waste removal, meal distribution method and eradication of pests), without however ending the situations of improper treatment raised by the Controller General.

The ineffectiveness of these means of redress is such that, more than one year after the court orders are handed down, the situation of blatant insalubrity in the Baumettes prison remained. New remedies were launched on 18 December 2013 by the French section of the OIP with a view to obtaining the effective enforcement of the previous orders.

Recently, the restrictive nature of the petition for the protection of fundamental rights and freedoms was confirmed in reference to the prison of Ducos. In a case brought by the French section of the OIP, the judge acceded to certain targeted demands but dismissed all demands for measures pertaining to deep causes of overcrowding and improper material conditions of detention, citing that these measures “could not be ordered in the context of a petition for the protection of fundamental rights and freedoms”.

The French Conseil d’Etat (CE) itself recognised the limitations of its intervention (CE, 30 July 2015, no. 392043). To dismiss a case concerning the prison of Nîmes, it explicitly observed that, in this prison, the “detention conditions are worsened by the pervading lack of privacy, and prisoners that experience these conditions are thus subjected to inhumane or degrading treatments”. Nevertheless, it considered that it could not stop such a situation because its “intervention […] in the particular conditions of urgency provided for by article L.521-2 above is conditional on the observation that the contested situation makes it possible to usefully and very swiftly order the necessary safeguard measures”.

It thus ordered only a few residual and limited measures (works to prevent risks of fire, distribution of cleaning products and clean sheets and blankets). It only invited the administration to improve the situation so that prisoners no longer sleep on mattresses on the floor, but ordered no specific measure to this end. Considering his limited power, the judge for interim relief dismissed all demands likely to actually stop inhumane treatments in the prison.

The judge will therefore clearly not intervene on the actual causes of the violation, and in particular will not solve the issue of overcrowding.

As regards the protective summary procedures (référé mesures-utiles) (article L.521-3 of the French Code for Administrative Justice), the French Conseil d’Etat (CE) recently restricted the measures that could be ordered. It ruled that “an application aiming for the court to order the competent authority to take regulatory measures, including the organisation of services it is responsible for, is not consistent with what can be brought before the interim relief judge on the basis of article L.521-3” (CE, 27 March 2015, OIP, no. 385332, concerning the setting up of a prisoner consultation committee, in accordance with the law). It thus closed this means of redress for general measures likely to remedy broad issues, like poor conditions of detention.

3.4 Compensatory means of redress

The Conseil d’État recently extended the conditions applicable to questioning the liability of the administration. In law, three liability regimes co-exist: “strict liability”, “simple negligence” and “gross negligence”. In abandoning the requirement for gross negligence, the Conseil d’État first stated that simple negligence was enough to render the administration liable in the event of a prisoner’s suicide, as indicated in its decision of 23 May 2003 in the Chabba case (no. 244663). This liability regime for simple negligence was then extended to cases of damage to prisoners’ belongings[19] and to the hypothesis of accidental death of a prisoner from a fire lit by a cell mate[20]. In an OIP judgment of 17 December 2008 (req. no. 305594), the Conseil d’État defined the obligations of the State as concerns the protection of the life of prisoners and the powers bestowed on the prison director for their implementation: “by virtue of a principle recalled notably in (…) article 2 of the [ECHR], the terms of which state that the right to life of all persons is protected by law, and considering the vulnerability of prisoners and their situation of total dependency on the administration, then the latter, and in particular (…) the minister for justice and the directors of penitentiary establishments, (…) must implement the measures that will protect their life”.

Conditions for committing the liability of the prison administration

Under certain conditions, prisoners and/or their relatives can obtain financial compensation for damage suffered and attributable to the prison administration:

  1. The damage must be real, certain (even if it can be future) and personal, i.e. it must not be hypothetical and must affect the person who is claiming the compensation.
  2. The damage must result from the faulty conduct of the prison administration. The administration can, in principle, only be made liable if it is at fault. There is only one exception to this principle, and that is the death of a prisoner caused by the violent conduct of other prisoners. “Even where there is no fault, the State is required to remedy the damage deriving from the death of a prisoner caused by violence committed within the prison by other prisoners” (article 44 of the French penitentiary law of 24 November 2009).

Evidence of the fault, the damage and the causal link between the two must be clearly established by the applicant.

A fault can result from a behaviour, action or failure of the administration, and from an illegal decision. The faulty organisation of a service, its incorrect operation, the administration’s inaction in a situation in which it should have acted, are therefore also considered as constituting fault. Damages must therefore be paid for serious matters (suicide, violent behaviour, etc.), as well as for prison establishments’ failure to meet their normal obligations.

The State’s liability was sought, for instance, in the following matters: suicide (CE, Chabba, 23 May 2003, no. 244663); deterioration or theft of a prisoner’s belongings (CE, 9 July 2008, no. 306666); death following a fire lit by a fellow prisoner (CE, Zaouiya,17 Dec. 2008, no. 292088); keeping a prisoner in detention conditions that were contrary to human dignity (Bordeaux Administrative Court of Appeal, 18 Oct. 2011, no. 11BX00159); lack of medical treatment suited to the state of health of a prisoner (Bordeaux Administrative Court of Appeal, 25 June 2002, no. 99BX02809); lack of response from the prison administration when a prisoner indicated having been raped (Bordeaux Administrative Court, 30 June 2009, no. 0704038); unjustified withholding of the typewriter (Lyon Administrative Court, 8 Feb. 2011, no. 084963); cell overcrowding and non-acknowledgement of the state of health of one of its occupants (Versailles Administrative Court of Appeal, 16 Dec. 2010, no. 08VE00299); unjustified obstacles to normal religious practice (Paris Administrative Court of Appeal, 30 May 2011, no. 10PA03619); prisoner illegally banned from outdoor exercise (Lyon Administrative Court, 3/01/12, no. 0907768); opening of confidential post (Paris Administrative Court, 2/03/06, no. 0419823); subjecting a prisoner to systematic full body searches when leaving the visiting room (Nancy Administrative Court, 23/06/15, 1302530).

Additionally, convictions pertaining to unworthy conditions of detention are increasing, as witnessed by the judgment rendered by the Douai Administrative Court of Appeal on 9 December 2010, ordering the State to pay damages to 38 people held at the Rouen prison (no. 10DA00759 – see also Bordeaux Administrative Court of Appeal, 20/03/ 2012, no. 11BX01223, and 18/10/2011, no. 11BX00159; Lyon Administrative Court of Appeal, 18/04/2010, no. 09LY02916; Douai Administrative Court of Appeal, 12/11/2009, no. 09DA00782…). The Conseil d’Etat recalled that detention conditions violating human dignity constitute a fault that commits the State’s liability vis-à-vis the prisoner, who can obtain compensation before the administrative judge. It should be specified here that the appreciation of the conditions’ nature as prejudicial to human dignity “in particular depends of [the] vulnerability [of prisoners], appreciated according to their age, their state of health, their disability and their personality, as well as the nature and duration of the failures observed”, should be put in the balance with the “motives that may justify such failures considering the requirements involved in maintaining security and good order in the prisons, as well as preventing repeat offences and protecting the interests of the victims” (CE, 6/12/12, no. 363290) .

3.4.1 Actions for damages

To obtain financial compensation for damages, prisoners and/or their relatives must follow a two-stage procedure. Firstly, they must send a written application for compensation to the administrative authority that caused the damage. If dismissed, they must then take the case to the administrative court for “compensatory remedy”. Actions for damages against the State follow the four-year limitation rule.

Actions for damages have the sole purpose of getting a judge to rule on the grounds of the application for compensatory redress. Although he recognises the existence of a prejudice committing the liability of the administration, the judge has the power to set the amount of the damages that will be granted to the applicant.

As well as a reminder of the facts, the application must include all the explanations and supporting documents necessary to demonstrate the existence of adverse effects and a direct link with a fault committed by the prison administration. The application must also specify the overall amount of the damages claimed as well as the interests of the amount that may be payable by the administration. The assistance of a lawyer is compulsory to refer an action for damages to the administrative court.

Where an application is dismissed, an appeal can be made before the Administrative Court of Appeal (for compensatory demands over 10,000 euros). An appeal can be lodged with the Court of Cassation against judgments of administrative courts rendered in first and second instance (for compensatory demands below 10,000 euros), as well as against judgments rendered by the Administrative Court of Appeal.

3.4.2 Interim payments (art. R.541-1 of the French Code of administrative justice).

An interim payments application enables the applicant to obtain an advance on damages refused by the administration, pending the court’s ruling on the final amount of damages payable during the review of the action for damages. The applicant can also take the case to the interim payments judge without filing, either before or simultaneously, a damages claim with the administrative court. In this case, the decision rendered by the interim relief judge ends the dispute. If the interim payments application is dismissed, the applicant is free to launch an action for damages. An appeal may be brought with the Court of Cassation in the event of dismissal.

Interim payments are subject to a single condition: the applicant must demonstrate that the legal and factual reasons for which the administration must pay damages are “not open to serious question”. As in the case of actions for damages, whose arguments he can re-use as applicable, the applicant must provide proof of the administration’s fault, the damage and the causal link between the two. The interim payments application must be filed by a lawyer. The applicant may decide to use only this procedure, or use it alongside an action for damages. The decision rendered by the interim relief judge can be the object of an appeal before the territorially competent Administrative Court of Appeal within 15 days’ notice. An appeal in cassation is possible before the Conseil d’État against the decision of the Administrative Court of Appeal within 15 days’ notice.

When a prisoner requests the payment of a sum from the interim relief judge, the damages incurred must be established by the applicant “with a sufficient level of certainty”. If “the assessment of the amount of the provision (…) is uncertain, the interim relief judge must only allocate a provision (…) for the fraction of this amount that, to him, is sufficiently certain”. (CE, 6/12/12, no. 363290)

The decision rendered by the interim relief judge can be appealed before the territorially competent Administrative Court of Appeal within 15 days’ notice. Appeal in cassation before the Conseil d’État against the decision of the Administrative Court of Appeal is possible within 15 days’ notice.

4. Procedures in disciplinary matters

4.1 Administrative sanctions

The disciplinary regime is defined by articles R.57-7 et seq. of the French Code of Criminal Procedure. Disciplinary decisions (with the most serious being placement in a disciplinary cell, without contact with the other prisoners, for a maximum duration of 30 days), are handed down by the chair of the disciplinary commission (the head of the prison) or one of his deputies. One member of the prison staff and one outside person are members of the commission in an advisory capacity. The decision is subject to appeal, in the conditions described below.

Any case referred to a court must necessarily follow an appeal to the interregional director (immediate supervisor to the prison director) within 15 days of the sanction. The interregional director has one month to give a decision. Only then can the case be referred to court, either by the prisoner alone or with the help of a lawyer, paid with legal aid, as applicable. The administrative court takes into account the evidence of the case and rules (redress for ultra vires, see above) on the decision of the interregional director, which has replaced that of the disciplinary commission. The procedure is mostly conducted in writing. The prisoner is not present during the hearing at the court, but his or her lawyer can be present. The judge checks that the administration has characterised the disciplinary infringement. Only very recently has the judge ordered a full inspection of the sanction handed down, i.e. its suitability to the infringement (CE, 1/06/2015, no. 380449). Up until then, the inspection concerned only the manifest error, i.e. clearly disproportionate response to the infringement. The court rules in the usual lead-times (between 7 months and 2 and a half years, depending on the court[21]), which means that the sanction will already have been served on the day the decision is handed down and, most often, the judge will have already withdrawn sentence reduction rights for the applicant if he or she is a convicted person (see below).

In other words, any cancellation by the judge is essentially symbolic, as it comes about so late on. The compulsory redress mechanism with the prison hierarchy has been ruled three times as contrary to Art. 13 of the ECHR (Payet v. France, above, Cogain, no. 32010/07, 3/11/2011, Plathey, above) but remains in force. The ECHR has recalled that the effectiveness of appeals supposes that they prevent the enforcement of measures contrary to the Convention and whose consequences are potentially irreversible. Ordering the isolation of a prisoner for safety reasons (and therefore not disciplinary reasons) is considered as a punitive measure, and the Court states that, “considering the significant repercussions of a detention in a disciplinary cell, means of redress that enable the prisoner to contest both form and content of, and therefore the reasons for, the sanction before a judicial instance is essential”.

For its part, the French Conseil d’Etat deemed that the mechanism was compliant with the ECHR, since prisoners have the possibility of taking their case to the interim relief judge (urgent proceedings) without waiting for the decision of the interregional director (CE, 28/12/12, no. 357494). Two procedures allow this, in theory.

4.1.1 Petition for the protection of fundamental liberties (“référé-liberté” in French)

French penitentiary law refers directly and exclusively to this procedure for prisoners placed in a disciplinary or isolation quarter (for security reasons). Although the law seems to make this a common law procedure in the field, case law applies highly restrictive conditions to this procedure, and it is therefore very rare that a prisoner actually benefits from it. In particular, the case must be urgent for the judge to order a measure within 48h. With this in mind, the Conseil d’Etat regularly rules that “the temporary modification in detention regime that results from the prisoner’s placement in a disciplinary cell (…) cannot, in the absence of special circumstances, be considered by itself as constituting an urgent situation” (CE, ord., 13/08/2014, 383588). The Conseil d’Etat has ruled in the past that keeping a prisoner in a prison’s disciplinary quarter for nearly three consecutive months (the legal maximum is set at 30 days) was not an urgent situation in the terms of the petition for the protection of fundamental liberties (CE, ord., 22 April 2010, no. 338662).

4.1.2 Petition for suspension (“référé-suspension” in French)

This procedure means taking a case to court at the same time as appealing to the interregional director. Its conditions are in principle less strict than those of the petition for the protection of fundamental liberties. However, applicants come up against the restrictive understanding of the “urgency” condition (see above). Decisions have been scarce since the entry into force of this procedure in 2001 (Lille Administrative Court, 13/07/2010 no. 1004031, Melun Administrative Court 1/04/2008 no. 0802164/6 KHIDER, Pau Administrative Court 19/08/2005, no. 0501583, Lyon Administrative Court 2/08/2004, no. 0405139, Grenoble Administrative Court, 16/12/2009, M. Hadji). The interim relief judge has dismissed the appeal of a prisoner confined for 28 days to a burnt out and suffocating disciplinary cell (see Plathey v. France, above).

The inefficiency of the means of redress is even more damaging that an applicant sanctioned by the administration sees the real duration of his or her prison term increased almost systematically due to the withdrawal of sentence reduction rights by the judge.

4.2. Behavioural sanction by the sentence enforcement judge

The procedure to withdraw sentence reduction rights that are automatically awarded when a sentence is enforced (articles 712-5 and 721 of the French Code of Criminal Procedure) is fundamentally unbalanced. The prison management or the public prosecutor takes the matter to court. Most often, the applicant is not even informed, and only becomes aware of the procedure when his or her sentence reduction rights are withdrawn (up to 3 months per year).

Additionally, before taking his decision, the judge consults with the sentence application commission, whose main members are, as well as the sentence enforcement judge, the representative of the public prosecutor and the head of the prison establishment. The other members are subordinates to the latter. The prisoner is very rarely heard by the commission, and such hearing is decided by the sentence enforcement judge.

These radical imbalances are not corrected during the appeal phase, as it does not have the same scope as the first instance examination. The examination in appeal gives rise to discussions between the various players in the detention, who all have precise knowledge of the prisoner’s case and see him or her regularly. During the appeal phase, the judge rules on brief written elements, is very far from the local situation and only has superficial knowledge of the prisoner’s profile and personality. This judge will therefore naturally give great importance to the statements drafted by the players in the field.

According to the book of law, the appeal case file “can only include the incident report that is at the origin of the sentence reduction rights’ withdrawal”. It is therefore particularly complicated to obtain the annulment of the first instance decision. The Court of Cassation settles for brief, even stereotyped, statements, making further inspection of the matter unlikely (Crim, 15/04/2015, no. 14-80417).

5. Protection of prisoner rights and early release / sentence reduction procedures

Strengthening the role of the sentence enforcement judge as a means of redress was considered during the first discussions for a French penitentiary law (2000-2001). The National Association of Sentence Enforcement Judges (“Association Nationale des Juges de l’Application des Peines”) had rejected this notion at an early stage, citing the too great proximity with penitentiary services in everyday work (preparation of sentence reduction cases), which constituted an obstacle to an in-depth investigation of such penitentiary services. Sentence enforcement has nonetheless been the subject of a certain amount of legislative involvement, and it has become a reasonably evolved law. Competent courts are generally not subject to common law procedural principles, and preserve in some ways the mark of the original institution, i.e. the sentence application judge, which was created in 1958 on the basis of an administrative practice aiming to associate judges with sentence application measures. This judge took the legal administration decisions that were then not subject to appeal, turning the field of sentence enforcement into restrained court jurisdiction.

With sentence enforcement going through a serious legitimacy crisis, and the rate of awarding sentence reductions being deemed much too low, a project was set up in 1999 to breathe new life into the early release processes (Farge Commission report). At the same time, a law of 15 June 2000 started to increase the role of courts for some measures, thus offering new procedural guarantees for prisoners. Decisions relating to measures of work release (“placement à l’extérieur”, or PE), day parole (“semi-liberté” or SL), electronic monitoring (“surveillance électronique” or PSE) and conditional release (“libération conditionnelle” or LC) are now made in court (712-6 of the French Code of Penitentiary Procedure). Thus, prisoners may present their observations and appeal against the decisions rendered by the sentence enforcement judge. The measures concerning prisoners given long prison sentences are taken by a collegiate court. Sentence enforcement is now on the way to becoming “a real judicial stage, the third after legal proceedings and judgment[22].

The law of 4 March 2002 institutes sentence suspension for medical reasons, following recurring demands from NGOs. The law of 9 March 2004 rationalises the court architecture by aligning it on that of common law. The new sentence application tribunal (“Tribunal de l’application des peines”, or TAP) refers to the first instance of common law and its decisions are reviewed by the new sentence enforcement chamber of the appeals court (“la chambre de l’application des peines”).

In the meantime, the law of 2008 on secure detention (“retention de sûreté”) creates a mechanism for deprivation of liberty for an unlimited period, applicable to prisoners who have already fully served their sentence and who are deemed to be particularly dangerous. The mechanism calls on experts, an administrative commission, and a specialised court. Despite the legal outcry that followed this initiative, the French Constitutional Council (“Conseil Constitutionnel”) approved most of the draft law, with a reserve on the principle of future application, which authorised doctrine deemed dubious. The law of 15 August 2014 creates a new procedure, conditional release (“libération sous contrainte”) (see below).

The following should be distinguished: court decisions, termed judgments (1st instance, sentence enforcement judge and sentence enforcement tribunal) and decrees, and rulings made by the sentence enforcement judge.

5.1 Measures that are pure court decisions

The following are court decisions: sentence reduction measures (conditional release, sentence suspension, day parole). They must be substantiated by and taken after an adversarial debate (except if the prosecutor’s office and the prisoner decide against it), and presence of a lawyer is expected, through legal aid if necessary. These decisions are subject to appeal. However, first instance and appeal decisions are not made public.

The Court of Cassation has long deemed that article 6§1 of the ECHR should not apply to sentence reduction measures such as conditional release and sentence suspension for medical reasons (Crim. 15/02/2005, no. 04-81.775, Crim. 29/01/2014, no. 12-88284; Crim., 26/02/2014, no. 12-86227).

In a recent decree, the Court of Cassation nonetheless acknowledges the applicability of article 6§1 to cases of revocation of conditional release, which require in particular the presence of the prisoner at the hearing (Crim. 15 April 2015 no. 1804).

Decisions pertaining to conditional release and sentence suspension are taken by the sentence enforcement tribunal (“Tribunal de l’application des peines”, or TAP), comprised of three judges of the regional court (Tribunal de Grande Instance), when the sentence initially handed down exceeds 10 years and the remaining sentence to be served is over 3 years. The other measures are handled by the sentence enforcement judge, who can send a case he is competent for to the sentence enforcement tribunal.

5.2 Hybrid decisions

Decisions pertaining to sentence reductions[23] and temporary absences taken by the sentence enforcement judge after consulting with the sentence enforcement court, are orders subject to a “hybrid legal system”[24]. An adversarial debate is not compulsory (and very rare) and the convicted person cannot be assisted by a legal advisor. These decisions are substantiated and may be the subject of an appeal before the chair of the sentence enforcement chamber within 24 h (Article 712-11 of the French Code of Criminal Procedure). This judge bases his decision on elements in the case, without holding a hearing. The prisoner can be assisted by a lawyer, who submits written observations.

Although judicial case law considers that article 6 of the ECHR is ineffective (Crim. 15/04/15, no. 14-80.417), very recent case law of the French Conseil d’Etat ruled for the applicability of this provision in procedures concerning the withdrawal of sentence reduction rights[25].

5.3 Decisions taken in the context of the conditional release procedure

The law of 15 August 2014 created the conditional release (“libération sous contrainte” in French) procedure, applicable to prisoners serving sentences shorter than or equal to five years and having already served two-thirds of their sentence. Their situation is reviewed as a matter of course, with a view to a potential release measure (conditional release, day parole, work release, electronic monitoring). Conditional release is therefore a court decision, a procedure rather than a measure. The decision is taken by the judge as a substantiated order, following a debate with the sentence application commission. The decision may be appealed. The prisoner may be present at the hearing and may be assisted by a lawyer, even though such presence is at the discretion of the judge, which has been highly criticised in the doctrine.

5.4 Multiple issues

The multiplication of legal obstacles to the awarding of sentence reductions and the increasing effects of taking into account the personality and dangerousness of individuals in court and penitentiary procedures have led to a marked fall in the number of early releases.

Sentence reductions are all being awarded increasingly less, despite the criminal reform and the implementation of conditional release (“libération sous contrainte” or LSC). The average number of prisoners with sentence reduction is 19,840 (including 402 in conditional release) in 2015, down from 20,140 in 2014 and 20,282 in 2013. Conditional release entered into force on 1 January 2015, but has so far not increased the number of sentence reductions awarded. The aim of LSC was to approve releases as “a normal and necessary stage in the enforcement of sentences”, yet it only replaces the normal procedure. Unfortunately, the penitentiary administration expects only slight improvement. For 2016, it expects only 31% of accompanied early releases, the same rate as in 2015. Moreover, it expects only a slight improvement for 2017, with 33%. The aim is thus to move from 70% of “normal releases” to 63% at the end of the mandate.

The period of unconditional imprisonment is the most obvious obstacle, since it inherently excludes any sentence reduction or parole. It may be automatic (for half the sentence or 18 years in the event of life sentences), without request of the public prosecutor, nor debate before the court, in the event of conviction to imprisonment for a term equal to or above 10 years for a large number of infringements. As regards the optional imprisonment period, it can be freely determined by the court so long as it does not exceed two-thirds of the sentence (22 years for life sentences).

One must also remember the specific procedure for awarding conditional release for long sentences (10 or 15 years depending on the nature of the infringement), likely to incur security measures at the end of the sentence. The procedure, adopted in August 2011, requires prior opinion from the multidisciplinary commission of safety measures (“commission pluridisciplinaire des mesures de sûreté” in French) and a six-week session at the national assessment centre. This means the procedure is time-consuming and highly administrative, leading to “over one year between the application and the examination of the substance of the case”, so much so that the prisoners are not “in a position to present a good project”. Either the project falls apart in this time (recruitment commitments from employers or accommodation solutions lapse), or the prisoners file their application prior to finalising their project, and the application is reviewed with information lacking. The number of conditional releases awarded to these prisoners is constantly dropping.

Lastly, with the differentiation of regimes according to the personality of the prisoners (from the middle of the 2000s), the operation of prisons now offers centre stage to information collection tools on the behaviour of prisoners, and shares such information with the various decision-makers. This crystallises the negative assessments of prisoners, thereby emphasising their stigmatisation. Knock-on effects are also significant: a decision taken by the disciplinary commission will affect the later decisions concerning allocation to a more or less severe quarter, the provision of a job, and sentence reductions.

5.5 Procedural aspects of release mechanisms for medical reasons

5.5.1 Sentence reductions in common law

A prisoner meeting the applicable lead-time conditions can apply for early release for medical reasons: day parole, work release, electronic surveillance or conditional release can be requested by all prisoners who can justify requiring “medical treatment”.

Conditional release is applicable to senior prisoners: with an ageing prison population, the penitentiary law of 2009 softened the conditions for conditional release for persons aged 70+. They are not required to serve a part of their sentence (half sentence or two-thirds for repeat offenders) and may benefit from release so long as their integration or re-integration into life outside prison is ensured. Such conditional release is refused if there is a serious risk of repeat offence or if the release is likely to cause serious disturbance to public order. Nonetheless, these early release decisions for elderly prisoners are not often handed down, with only 177 prisoners of 70 years + enjoying such conditional release at 1 July 2012[26].

5.5.2 A specific measure: sentence suspension for medical reasons

Established by the law of 4 March 2002, this measure is not subject to any time or social re-adaptation condition. Its granting leads to the release of the prisoner for an unlimited amount of time: sentence enforcement is suspended, but can resume when the beneficiary’s health improves. Prisoners can obtain such a measure if their state of health is “incompatible on the long term with detention conditions”, it being understood that there is no “serious risk of renewed infringement”. The legislator has acted several times to simplify and clarify the mechanism.

Indeed, the system was highly criticised for its severity and malfunctions. An interministerial report of 2013 highlights the measure’s enforcement issues, citing in particular the unavailability of medical evaluators. Additionally, the evaluators’ reports are often drafted in technical terms that do not leave judges with clear conclusions. The penitentiary law of 2009 had created an emergency procedure in which a medical certificate drafted by the doctor responsible for the prison’s health facility was sufficient, but this procedure is only applicable in the event of “the prisoner’s imminent death”. The interpretation of the texts by the case law of the Court of Cassation is also criticised, in that it requires that the prisoner’s life be in “imminent” danger.

In a ruling of 26 June 2013, the Court of Cassation neutralised the legal condition according to which the sentence suspension could only be granted if two experts’ reports agreed, French law not authorising that the judge’s appreciation be bound in this way (article 66 de la Constitution). The law of 14 August 2014 cancelled the need for one of the two reports, but upheld the principle according to which it bound the judge’s decision.

Additionally, the law now stipulates that the measure is also applicable to prisoners suffering from psychiatric disorders (except prisoners in enforced hospitalisation). In the field, however, the measure is not applied to this category of unwell prisoners.

6. Concrete situation of the protection of prisoner rights

6.1 Statistics

Figures pertaining to penitentiary disputes are not published. During a conference held on 24 November 2014, the administration gave the following figures: in 2013, 667 cases (of which 206 emergency proceedings) had been brought against the penitentiary services (administrative judge). In 2003, there were only 50 such cases. In terms of actions for damages, fines handed down amounted to a total of 1,296,000 euros in 2013, against 4,200 euros in 2006[27].

Sentence enforcement chambers of the appeal courts handled 3,913 cases at 31 December 2014[28] (these are appeals against decisions rendered by the sentence enforcement judge or tribunal on persons sentenced to open and secure custody).

In 2014 (66,270 persons in prison at 01/01/2015, of which 47,764 convicted), 7,949 conditional releases were granted (i.e. – 0.6 % in 1 year), and 48,481 temporary absences were granted (- 12.3% in one year). 1,689 convicted persons were placed on day parole, i.e. – 4.3% in one year. 970 are on work release, down 5.1%[29].

In 2013 (67,707 persons in prison at 01/01/2014, including 50,118 convicted), 7,999 conditional releases were granted, against 5,745 in 1993 (40,010 persons in prison at 01/01/1994, including 31,312 convicted). The figures of the other sentence reduction categories are falling in absolute terms (day parole: 4,651 in 2013, 6,045 in 1993; work placement: 2,176 in 2013, 3,273 in 1993).

As concerns statistics for sentence suspension for medical reasons, according to a ministerial report[30]296 applications were made in 2012; 253 applications were granted, i.e. a rate of 85%. Among the 33 dismissals, 16 were for reasons of a state of health deemed compatible with keeping the person in detention, 8 were for reasons of a non-life-threatening disease, 5 were for reasons of inconsistent experts’ reports, 2 were for reasons pertaining to the dangerousness of the prisoner, and one was for lack of accommodation outside the prison”.

6.2 Obstacles to court action

Review of a matter by a judge can only occur if said matter is taken to court. Yet, there are a number of obstacles hindering court action and which are specific to prisoners. They concern for instance limitations inherent to the detention situation, the social and economic insecurity affecting a great majority of prisoners (poverty, illiteracy, etc.)[31], or their ambivalent relationship with the law and the judicial institution.

Sociology of law in prison has notably insisted on the material limitations of access to and command of legal resources by subjects who are socially weak: impossibility of receiving the updated internal rules of the prison, lack of access to legal resources in the prison libraries, impossibility of purchasing a Code of Criminal Procedure at a reasonable price, etc. Along with this material unavailability of the law, there is the fact that “the complexity of the rules system and the prison population, often hailing from disadvantaged neighbourhoods and with few or no qualifications, do not foster the precise knowledge of the rules, or their appropriation by a majority of people in prison”[32]. From the data collated during the systematic identification of illiteracy in prisons by the administration, conducted in 2014 on 51,019 prisoners, 10% of the people met have very poor or no knowledge of French, 43.4% have no qualifications, and 22% fail the reading test, of which 10% are illiterate.

Several studies[33] have also insisted on the practical threat of the penetration of law on the fragile balance of social relations in prison, which are traditionally founded on reciprocity and honour rather than reference to legal rules[34]. Resorting to the law often means turning one’s back on traditional means of dispute resolution and the secondary benefits that these informal and sub-legal relationships are likely to provide.

It is also important to highlight that taking a matter to court, and more broadly to any external inspection body, may be risky for prisoners, with the prison administration terming as “litigious” the most active prisoners in this regard (see below).

Lastly, prisoners often have a complex relationship with the judiciary and with the law. Above and beyond the material, cultural and organisational restrictions on the availability of law in detention, prisoners, who are often stigmatised by their imprisonment and their social trajectory, put their dignity on the line when they call on the law to solve their issues. Resorting to law appears as a “moral challenge” to overcome – or bear– with a two-fold humiliation: one which requires the prisoner to speak up to an official body, and another which requires the prisoner to affirm– despite the stigmatisation of imprisonment– that he or she is a holder of human rights that must be applied[35].

Persons with very long sentences, who are particularly subject to safety and disciplinary sanctions, are those who have brought lawsuits to France, often without outside counsel. Among convicted persons, the length of the sentence enables the accumulation of institutional and legal skills, the reduction in the time cost of the procedure (which is superimposed to that of incarceration), and the awareness of the limitations of local compromises with penitentiary authorities. This state of being has been highlighted in particular to explain the importance of the disputes on heightened security measures brought before the administrative judge — measures that concern such prisoners in particular.

As regards access to sentence reductions, Y. Bouaga has found that the individuals with the most “legitimate” reasons are most likely to gain the confidence of judges because of the reassuring social image they project. The social and economic context they find themselves in bestows upon them guarantees that constitute, in the minds of the judges, a very likely social reintegration and a lesser risk of repeat offence.

The impetus for, and the coordination of, disputes is very broadly led by the French section of the International Prison Observatory (“Observatoire international des prisons – Section française”, or OIP-SF). Set up in 1996, it took its first timid steps into the field of prison disputes in the 2000s, then more resolutely and more massively from 2003-2004[36]. A prominent member of the Conseil d’Etat, B. Genevois, has described the action of the OIP as a “French-style class action where a group makes certain categories of persons leave a no-go area. We believe it is a good thing[37]. The OIP-SF initiated some one hundred orders handed down by domestic courts, and a dozen judgments condemning France before the European Court for Human Rights. It is clear that the OIP-SF has worked hard in driving back internal order measures that are not open to appeal, by offering legal advice to applicants that, in most cases, has led to advances in case law on this issue from 2007 onwards. The association can thus act in support of a procedure brought by a prisoner against a decision affecting him, contest in abstracto regulatory or legislative provisions in the criminal or penitentiary field, or act for the collective good of the prisoners of a particular establishment (e.g. systematic full body search regime or material detention conditions).

Additionally, the OIP-SF can launch contentious campaigns in the form of recurring cases targeting one particular issue, as it has done these last two years against the practice in French prisons of systematic full body searches on prisoners leaving the visiting rooms. In such cases, the OIP-SF relies on the skill and knowledge of an employed legal practitioner, assisted by a trainee lawyer conducting his or her final internship. The dispute activity is fed by the relationships that the association has with a number of prisoners and their relatives, and whose correspondence makes it possible to identify new situations likely to advance case law. Additionally, although the OIP-SF’s dispute hub sometimes reacts to current affairs – for instance when a supervisory authority publishes a report opening the door to an administrative dispute –, it files its activity in the list of strategic priorities defined by the national secretariat of the association, with the approval of the supervisory board. Thus, in 2015, several disputes pertaining to obtaining visiting permits were initiated as part of a strategic action plan in support of prisoners’ relatives.

It should be noted here that the association Ban public, whose members include former prisoners, as well as certain major “generalist” associations like the Ligue des droits de l’homme and the Syndicat des avocats de France, are also regular purveyors of prison disputes.

Moreover, the OIP-SF launched the establishment of a network of lawyers specialised in penitentiary law. Avocats pour la défense des droits des détenus (A3D) is an association under French law and currently numbers some 100 members.

Following in the footsteps of cause lawyers’ individual commitment, the establishment of this association is testament to the new interest borne by young legal professionals in penitentiary matters. Although penitentiary law offers few financial prospects, the effervescence of its case law offers possibilities for activist and reputational remuneration. As observed by one of the lawyers interviewed, young lawyers (in particular young women) are the ones currently taking on penitentiary matters. Still broadly left to its own devices, penitentiary law offers activist prospects, while case law is slowly clogging up other fields. Such case law prospects are also likely to offer a certain amount of visibility to these young professionals.

When compared with the beginnings of cause lawyer and activist association commitment, the emergence of a lawyer network covering the entire country is an essential step that makes it possible to group together penitentiary disputes. One lawyer interviewed, who works for an activist association, highlighted the difficulties encountered when trying to broadcast the favourable decisions obtained so that they can be used to launch mass disputes. Indeed, associations do not have resources necessary to duplicate case law wins, but they can make available statements of case templates and court solutions, so long as they can draw on a network of specialised lawyers to use them.

Lastly, one must highlight the important role of prisoners taking their cases to court so that their rights may be respected. They are sometimes pro-prisoner rights activists, and the most prolific are termed by the administration as “litigious”. Although we can speak of “penitentiary legalisation”[38], this expression first referred to the broadcasting of a rights discourse in daily relations between prisoners and prison staff. Only a few rare prisoners update this discourse in their procedures, especially when such procedures may take several years. Studies carried out on the initiation of procedures by prisoners all point to the fear of formal or informal reprisals from the penitentiary administration.

[1] Decision no. 2014-393 QPC of 25 April 2014 (authorisation given by the legislator to the executive to define all the rules regarding prison operation and organisation)

[2] Decision no. 2016-543 QPC of 24 May 2016 (lack of means of redress concerning refusals of non-relative visit or telephone rights handed down to prisoners).

[3] The interview were conducted with lawyers (one lawyer employed by an NGO, an independent lawyer with a close working relationship with an NGO, an independent lawyer with no specific specialisation in the penitentiary field) and ordinary and administrative judges (a public prosecutor, a sentence application judge, a public rapporteur for an administrative court). These interviews were conducted for a monograph on a prison located in the Paris region (including in particular a long term ethnography and a significant number of interviews with prisoners and prison staff, n=64), as part of a sociology PhD dissertation (Corentin Durand, “Production et traitement de doléances en milieu carcéral. Sociologie des communications critiques entre prisonniers et autorités”, dissertation prepared at the EHESS – Paris, France – under the supervision of Liora Israël and Nicolas Dodier).

[4] Jean-Yves Le Bouillonnec, Financement et gouvernance de l’aide juridictionnelle : à la croisée des fondamentaux – Analyse et propositions d’aboutissement, September 2014(

[5] CE, decree of 27 January 2007, Khider.

[6] In response to the argument brought by the claiming NGO, which had specifically highlighted this difficulty.

[7] Paris Administrative Court, ord. 11 February 2009, no. 0900389-9, see below.

[8] N. Ferran, La personne détenue encore à la recherche de son juge, Déviance et Société 2014/4 (Vol. 38)

[9] Xavier Domino – Aurélie Bretonneau, Miscellanées contentieuses –AJDA 2012. 2373

[10] Marseille Administrative Court, 10 Jan. 2013, OIP-SF, no. 1208146

[11] “Référé mesures utiles : la quadrature du cercle” – Louis Dutheillet de Lamothe – Guillaume Odinet – AJDA 2016. 474

[12] As was the case with a view to the recommendation of the Controller General (Official Journal of the French Republic, 6 Dec. 2011)

[13] For placement into a disciplinary cell without heating facilities in winter, the Court of Nantes ruled that “implementation conditions of a sentence are without impact on the lawfulness of the disciplinary measure, which they are separate from” and that Article 3 of the ECHR banned sentences or treatments “that, in principle, are inhuman or degrading” (Nantes Administrative Court of Appeal, 21 February 2008 No. 07NT01497).

[14] Rejection of an order to close a dilapidated disciplinary quarter (Versailles Administrative Court of Appeal, 23/10/12 10VE03029), when the state of it had led to a condemnation of France (Payet v. France, 20/01/11, no. 19606/08)

[15] A Court censured a judgment that annulled the refusal of a prison director to partition the toilet area and upgrade to standard the establishment’s electrics and aeration. It based its decision on the fact that a prison was under construction in the same city, that some cells had isolated toilet facilities in the higher levels. Yet, the action was based on an expert’s report by an architect that had led the court to sentence the administration for professional fault on six prisoners, for lack of a specific grievance (Nantes Administrative Court of Appeal, 1NT00495 of 5/07/12).

[16] Plathey v. France, 10/11/11, no. 48337/09; Payet v. France, above.

[17] “when the failures of the public authority cause serious and imminent danger to the life of people or cause such people to be exposed to inhuman or degrading treatment (…), and that the situation makes it possible to usefully take safeguard measures within 48 hours, by applying the petition for the protection of fundamental rights and freedoms, the interim relief judge can order all the measures necessary to stop the situation deriving from such failure” (CE, 22/12/12, OIP)

[18] In this particular case, the decision had only been possible through the immediate publication by the Controller-General of the conclusions of his visit, which is exceptional.

[19] CE, 9/07/08, Boussouar, no. 306666.

[20] CE, 17/12/08, Zaouiya, no. 305594.


[22] V. Delbos, Naissance d’une juridiction, Projet 269-2002, pp. 96-103

[23] Sentence reduction credits are calculated and awarded automatically (3 months per year and 7 days per month for a sentence or remaining sentence less than one year). The sentence enforcement judge may withdraw these credits in the event of disciplinary incident. Additionally, the sentence enforcement judge may award additional sentence reduction credits.

[24] Mr Herzog-Evans, “Nouveautés du droit de l’application des peines: principes directeurs d’une réforme”, AJ Pénal, Nov. 2004, NO. 11, p. 285 et seq.

[25] CE, 24 October 2014, no. 368580.

[26] “Health, Justice, Sentence reductions for medical reason” (Santé Justice, Aménagements et suspension de peine pour raison médicale”) work group. Justice-Santé inter-ministerial report dated 20 November 2013.

[27] Where not specified, it appears that the figures encompass all types of actions for damages, including matters concerning suicide.

[28] Key figures from the Ministry of Justice 2015

[29] Key figures of the penitentiary administration at 1 Jan. 2015 (“Les chiffres clés de l’AP au 01/01/2015”)

[30] Santé Justice report of 23/11/2013

[31] OIP Les conditions de détention en France, Paris, La Découverte, 2012.

[32] C. Rostaing, “Processus de judiciarisation carcérale : le droit en prison, une ressource pour les acteurs ?”, Droit et société, 2007, vol. 3, no. 67, p. 577-595.

[33] A Chauvenet, C.Rostaing and F. Orlic, La violence carcérale en question, Paris, PUF 2008, 347 p ; G Salle et G Chantraine, “Le droit emprisonné ?”, Politix, 23 October 2009, vol. 87, no 3, p. 93‑117 ; C de Galembert and C Rostaing, “Ce que les droits fondamentaux changent à la prison. Présentation du dossier”, Droit et société, 24 July 2014, vol. 87, no 2, p. 291‑302; Y Bouagga, Humaniser la peine ? : Enquête en maison d’arrêt, Rennes, PU Rennes, 2015, 311 p.

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