After its conviction by the ECHR, France should allow detainees to seize a judge in the event of undignified detention conditions. – JOEL SAGET / AFP
- More than a year after a historic conviction of France by the European Court of Human Rights (ECHR), a new law gives detainees the possibility of bringing a case before a judge when they consider that their conditions of imprisonment are contrary respect for their dignity.
- The effectiveness of this text, adopted definitively on Tuesday, March 30, is however questioned by certain jurists, lawyers and institutions.
- According to them, the law is content to “fill a legal void” without tackling the basic problem: that of prison overcrowding in French prisons.
Upon his arrival at the Chancellery, the former criminal lawyer propelled Keeper of the Seals wished to address the detainees. “I am not forgetting the prison condition. I am thinking of the prisoners, of their inhuman and degrading living conditions, ”said Eric Dupond-Moretti when he moved to Place Vendôme in July 2020. Eight months later, the Minister of Justice must nevertheless face, like his predecessors, to a “structural” prison overcrowding, at the origin of undignified conditions of detention in certain French prisons.
Until now deprived of the right of appeal to protest against these conditions of imprisonment, prisoners and prisoners will soon be able to seize a judicial judge. A bill “tending to guarantee the right to respect for dignity in detention” was definitively adopted on Tuesday in the Assembly. The text, which fills a legal void denounced by the ECHR (European Court of Human Rights), the Court of Cassation and the Constitutional Council, marks an important “step forward”, welcomed by many players. But concerns about the effectiveness of the measure remain.
Good news “
“Even if the government is four weeks behind the timetable set by the Constitutional Council, the mere fact that this law is passed is good news. It is a new right for detainees and, from this point of view, we should be happy about it ”, underlines the penalist Matthieu Quinquis, member of the association of lawyers for the defense of prisoners’ rights (A3D). Until then, in France, when a detainee lived an unworthy daily life, in a dilapidated and unsanitary cell, he could appeal to administrative justice. “But experience has shown that the administrative judge could only take very limited short-term measures”, recalls Cécile Marcel, director of the French section of
the International Prison Observatory (OIP).
The historic condemnation of France by the ECHR in January 2020 was a game-changer. In a severe decision, the European court ordered the country to adopt “general measures aimed at eliminating overcrowding and improving the material conditions of detention”. She also condemned France to put in place “a preventive remedy allowing detainees […] to rectify the situation of which they are victims ”. It will be done, for this last point,
with the vote of this bill.
Dissuasive transfers?
However, the response provided by the text is far from unanimous. Concretely, the defendants (that is to say the detainees awaiting trial) and the convicted persons will be able to apply to the judge of freedoms and detention or the judge of enforcement of sentences. “They will have to provide sufficient and detailed information so that the judge, on the basis of this story, can form a first opinion,” explains Matthieu Quinquis. The magistrate can then seize the prison administration which will have between three and ten days to make his observations. If the inmate’s request is deemed admissible, the prison administration will then have to put an end “by any means” to these degrading conditions of detention within one month. A “preponderant role” granted to the prison supervisory authority which worries the OIP and the A3D. Especially since one of the solutions proposed by the law is the transfer of the prisoner to another penitentiary establishment.
Unworthy conditions in detention: the @CGLPL wrote to the senators, this explains most of my amendments … too bad the senatorial right did not plan to audition him. Even more damaging that it adopted only one of my amendments out of 28! Meeting on 8 in session pic.twitter.com/wDW4r4Qpyy
– Jean-Pierre Sueur (@JP_Sueur) March 3, 2021
“Prisoners will be faced with a cost-benefit calculation that could encourage them not to denounce their conditions of imprisonment. They will have the choice between taking the risk of being transferred, therefore distant from their family, their lawyer, without having the guarantee of a follow-up in their course of care or training, but in a correct cell. Or live in a cell with rats and cockroaches while maintaining their family ties ”, illustrates Matthieu Quinquis. On this point, however, the final text provides a possibility for the judge to refuse the transfer if it causes “an excessive interference with the right to respect for his private and family life”.
Asked by several elected officials about the risk of seeing the unworthy detention conditions perpetuate despite the transfer of the detainee, the Minister of Justice indicated that he “would ensure, in the application circular, that a detainee cannot not be transferred from a place where conditions are unworthy to another where they are too ”.
A text that does not “go far enough”
Finally, beyond the solutions proposed by this new law, associations and elected officials believe that the text does not “go far enough”. “This is a missed opportunity since this bill unfortunately does not meet the requirements of the ECHR to fight against prison overcrowding”, regrets Socialist Senator Jean-Pierre Sueur. However, the indicators are “very worrying”, warns Cécile Marcel, of the OIP. “Magistrates continue to resort to imprisonment for petty crimes.” After a significant drop linked to the first confinement, the number of people incarcerated in French prisons rose again last February, to 64,405 inmates against 63,802 the previous month.
In a statement relating to the proposed law, published on March 25, the National Consultative Court of Human Rights (CNCDH) regretted that France was “unable to seize the opportunity to meet the demands of the European Court of Human Rights”. And recalled: “Prison overcrowding is not inevitable and there are measures that would reduce the excessive use of prison sentences. The resources allocated to the construction of new penitentiary establishments could thus be reassigned as a priority to the renovation of existing establishments and to the development of alternatives to detention ”.
The debate should however quickly return to the hemicycle. The Minister of Justice is due in mid-April to present a large bill to reform the justice system. Among the measures considered and unveiled in the press, the Minister of Justice intends to “put an end to the credits for automatic remission of sentence […] set up in the early 2000s with the sole aim of regulating the penal population, without saying so ”.