EHRM, 20-10-2016, nr. 7334/13

In a judgment of the Čakovec County Court (Županijski sud u Čakovcu) of 19 June 2008, upheld by the Supreme Court (Vrhovni sud Republike Hrvatske) on 3 February 2009, the applicant was sentenced to two years' imprisonment for armed robbery.

On 2 July 2010 the Čakovec Municipal Court (Općinski sud u Čakovcu) sentenced him to one year's imprisonment for theft, which was confirmed by the Čakovec County Court on 3 November 2010.

Following a request by the applicant, on 26 August 2011 a three-judge panel of the Čakovec County Court took into account those two convictions and sentenced him to a single term of two years and eleven months' imprisonment.

On 16 October 2009 the applicant was transferred from a semi-open regime in Turopolje State Prison (Kaznionica u Turopolju) to Bjelovar County Prison (Zatvor u Bjelovaru) to serve the prison sentence originally imposed by the Čakovec County Court on 19 June 2008 (see paragraph 10 above). The reason for the transfer, as indicated in a report of Turopolje State Prison, was the applicant's inappropriate behaviour and threats of escape.

The applicant remained in Bjelovar Prison until 16 March 2011, when he was transferred to Varaždin County Prison (Zatvor u Varaždinu) following a decision by the Ministry of Justice Prison Administration (Ministarstvo pravosuđa, Uprava za zatvorski sustav) of 11 March 2011.

According to the applicant, during his stay in Bjelovar Prison he was placed in overcrowded cells. He alleged in particular that for a period of fifty days in total he disposed of less than 3 square metres (sq. m) of personal space, including for a period of twenty-seven consecutive days. There were also several non-consecutive periods in which he was allocated between 3 and 4 sq. m of personal space in the cells (see paragraph 17 below).

The applicant further submitted that the cells in which he had been held were badly maintained, humid, dirty and insufficiently equipped with lockers and chairs for all inmates. The sanitary facilities were in the same room as the living area, from which they were not fully separated. Those facilities were about half a metre away from the dining table and there was a constant smell in the cell. Moreover, he had not been given any opportunity to engage in prison work and in general was not provided with sufficient access to recreational and educational activities. The prisoners were allowed to move freely outside the locked part of the prison between 4 and 7 p.m., and the out-of-cell facilities were inadequate and insufficient, particularly given that there was only an open recreation yard. The nutrition was poor and the hygiene conditions were inadequate, especially since the toilet was not separated from the living area. The inmates did not have sufficient access to hot water and were allowed to shower only once or sometimes three times per week.

According to the Government, while in Bjelovar Prison the applicant had at his disposal an average of 3.59 sq. m of personal space. He was held in four different cells, the conditions of which are detailed in the table below.

The measurements of the cells indicate their overall size (as provided by the Government) and with the in-cell sanitary facility deducted (based on the methodology enunciated in paragraph 114 below). That calculation is based on an approximate measurement of the sanitary facility (1.9 sq. m) according to the floor plans of Bjelovar Prison, which the Government provided to the Court and which are not disputed by the applicant.

The Government further explained that each cell in which the applicant had been accommodated had had windows allowing in natural light and fresh air. Artificial light was also secured and all cells were heated by a central heating system and equipped with a communication system enabling the inmates to contact prison staff immediately in case of need. All cells had a toilet fully separated from the living area and equipped with its own ventilation system. All cells had direct access to drinking water. The cells were constantly maintained and some necessary reconstruction work and improvements to the facilities had been carried out in 2007, July 2009 and May-July 2010, as well as in 2011, 2012 and 2013. Furthermore, the inmates were provided with all necessary hygiene and sanitary facilities. This included a shower three times per week and after sports activities. Every inmate was also regularly provided with the necessary toiletries and cleaning supplies for keeping the cells clean. The inmates were provided with clean bedding and bedspreads every fifteen days, or more often if necessary. In addition, the inmates were provided with the necessary clothing although they were allowed to use their own clothes. Nutrition was based on an assessment by experts and the quality of the food was constantly monitored by the competent State authorities. The inmates were provided with three meals per day meeting the necessary nutrition requirements, as supervised by the prison doctor. Meals could be taken to cells or eaten in a common room.

The Government also explained that the inmates were allowed to move freely outside their cells in the morning and afternoon, and to use the indoor and outdoor facilities of Bjelovar Prison. This in particular included two hours of outdoor exercise and in addition free out-of-cell movement inside the prison between 4 and 7 p.m. Specifically, in the ordinary daily regime, the inmates would wake up at 7 a.m. on working days and at 7.30 a.m. on weekends and public holidays. They would then wash, tidy their beds, and have breakfast, followed by the morning cleaning of the cell. Leisure time was scheduled afterwards, until 1 p.m., when they had an opportunity to take part in a number of activities. Leisure time was followed by lunch served between 1 and 2 p.m. The period after lunch was usually set aside for various group activities and meetings with lawyers and prison staff. Between 4 and 7 p.m. all cell doors were opened again, enabling the inmates to move about within the prison and to use its facilities as they saw fit. Dinner was served from 7 p.m., followed by the evening tidying and cleaning of the cells and other rooms in the prison.

The Government submitted that Bjelovar Prison was equipped with a recreation area located in the courtyard, which, in addition to the asphalted parts, included a lawn. The surface area of the courtyard was 305 sq. m. There was also direct access to drinking water and artificial light as well as protection from inclement weather available in the recreation area. The gym was open between 8 a.m. and 12.30 p.m. and between 2 and 6 p.m., and the basketball court was open on working days between 3 and 4 p.m. and at the weekends in both the morning and the afternoon. The recreation area was also equipped with a badminton court and ping-pong tables. The inmates were able to borrow books and use other services of the Bjelovar library, which were regularly available in the prison. The prison administration also organised religious ceremonies and contacts with cultural and religious associations. Each cell was equipped with cable television, which could be watched between 7 a.m. and 11 p.m. during working days, and between 7.30 a.m. and midnight at weekends and on public holidays. There were also radio receivers in the cells and the possibility of borrowing and watching films from a collection available in Bjelovar Prison. In addition, the inmates were allowed to socialise by playing board games. There was also a room for spousal visits and the inmates were allowed to obtain various goods from outside the prison. Bjelovar Prison also offered a possibility of education in prison but the applicant had decided not to avail himself of that opportunity. Remunerated work in prison was available in accordance with the economic possibilities, which were at the time limited due to the general economic crisis. A possibility of work outside the prison existed but the applicant's previous threats to escape and his inadequate behaviour in detention had not made him eligible for this possibility. During his stay in Bjelovar Prison, the applicant had regularly received medical treatment. He had seen his family four times while standing trial for another offence in Čakovec and had been allowed to speak to them by telephone twenty minutes per week, with an additional ten minutes on public holidays.

The Government substantiated their arguments with photographs taken in 2007, 2010 and 2011 in the context of the renovation of the prison and visits by various officials to the prison, floor plans and other relevant documentation related to the available facilities in Bjelovar Prison and the applicant's health care and nutrition.

On 24 March 2010 the applicant lodged a request with the Bjelovar Prison administration through a lawyer, asking to be transferred to Varaždin Prison for personal and family reasons.

On 26 April 2010 he complained to the Ministry of Justice Prison Administration in general terms about the conduct of the Bjelovar Prison administration, alleging that they had never offered him the opportunity to have a meeting with the relevant officials, that his request for a transfer had been ignored and that the prison food had been inadequate.

The applicant again reiterated his request for a transfer to Varaždin Prison on 6 May 2010, citing personal and family reasons, particularly his family's lack of financial means, which made it difficult for them to visit him.

On 14 July 2010 the Ministry of Justice Prison Administration replied to the applicant's complaints, finding them ill-founded in all respects. It pointed out that he had been given sufficient opportunity to have contact with his family by telephone and while attending the court hearings in March, April and July 2010 in the criminal proceedings against him, that he had not been engaged in any work because there had been an insufficient number of work posts in Bjelovar Prison, that he had had seven meetings with the prison governor and twenty-five meetings with various other Bjelovar Prison officials, and that food had been prepared in consultation with experts, the prison diet having been continuously supervised by the prison doctor.

On 24 August 2010 the applicant complained about the conditions of his detention to a sentence-execution judge of the Bjelovar County Court (Županijski sud u Bjelovaru). He pointed out that central to his complaints was his wish to be transferred to another prison closer to his family. He also complained, in particular, that his request to engage in prison work had not been answered. He was being detained with seven other inmates in cell no. 8, which measured 18 sq. m in total and was inadequately equipped and maintained. Hygiene conditions were poor, given that he had been allowed to take a shower only three times per week.

Following the applicant's complaint, the sentence-execution judge requested a detailed report from Bjelovar Prison concerning the conditions of his detention.

After obtaining the relevant report and hearing the applicant in person, on 7 October 2010 the sentence-execution judge dismissed his complaints as ill-founded. She found, in particular, that the applicant had sufficient personal space at his disposal, given that four other persons were at the time placed with him in the same cell. The sentence-execution judge also found that the applicant was provided with sufficient hygiene and sanitary facilities, and that he was not engaged in prison work since such opportunities did not exist for all prisoners in Bjelovar Prison.

On 15 October 2010 the applicant lodged an appeal against the sentence-execution judge's decision with a three-judge panel of the Bjelovar County Court, alleging that she had erred in her factual findings, as cell no. 8 had been occupied by up to eight inmates.

On 21 October 2010 a three-judge panel of the Bjelovar County Court dismissed the applicant's appeal as ill-founded, endorsing the reasoning of the sentence-execution judge. It also explained that the required standard for personal space under the Enforcement of Prison Sentence Act, namely 4 sq. m, was the recommended minimum standard that should in principle be respected, but that there could be no automatic violation of a prisoner's rights if such a standard was temporarily not complied with. In view of the fact that a reduction in the applicant's personal space in cell no. 8 had only been temporary, the three-judge panel considered that there had been no violation of his rights.

On 5 November 2010 the applicant complained to the Bjelovar County Court about the decision of its three-judge panel. He argued that for the first six months following his arrival at Bjelovar Prison, he had been detained in cell no. 1, measuring 17.13 sq. m, where six inmates in total had been detained. He had then spent one month in cell no. 8 on the first floor with six inmates, which had measured 17.13 sq. m. He had then been placed in another cell, also marked ‘cell no. 8’, which again measured 17.13 sq. m, where he had spent six months with eight inmates. At the time of his complaint he was being held in cell no. 4 with six inmates.

On 20 November 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), relying on Article 14 § 2 (equality before the law), Article 26 (equality before the State authorities) and Article 29 (right to a fair trial) of the Constitution, complaining in general terms of a lack of personal space and work opportunities in Bjelovar Prison. He also relied on section 74(3) of the Enforcement of Prison Sentences Act, guaranteeing adequate personal space to detainees, and alleged that this provision had not been complied with in his case.

On 26 November 2010 the applicant complained to the Ombudsperson (Pučki pravobranitelj) that he had not been granted a transfer to a prison closer to his family, and alleged in general terms that the conditions of his detention had been inadequate.

Meanwhile, in November 2010 the applicant joined a group of inmates who complained to the sentence-execution judge about inadequate general conditions in Bjelovar Prison.

By a letter of 7 December 2010 the Ombudsperson invited the applicant to further substantiate his complaints.

The applicant replied to that request on 21 December 2010, indicating that the sentence-execution judge and the three-judge panel of the Bjelovar County Court had never examined his complaints properly, and that he had not been granted 4 sq. m of personal space in detention as required under the Enforcement of Prison Sentences Act.

In March 2011 the applicant saw a psychiatrist, who found that the applicant was frustrated with his internment and the impossibility of seeing his family.

On 12 April 2011 the Ombudsperson replied to the applicant's letter that, according to the information available, his accommodation in Bjelovar Prison had fallen short of the requirements of adequate personal space under the Enforcement of Prison Sentences Act. The Ombudsperson also pointed out that the cell where the applicant was being detained had been renovated in 2010, and complied with all hygiene and health standards. The Ombudsman also noted that, just like ninety-two other inmates, the applicant had not been engaged in prison work, as there had been an insufficient number of work posts for all prisoners.

On 5 June 2012 the Constitutional Court declared the applicant's constitutional complaint (see paragraph 32 above) inadmissible as manifestly ill-founded. The relevant part of the decision reads:

The Constitutional Court's decision was served on the applicant's representative on 18 June 2012.

In the periodic annual reports between 2009 and 2011 the Croatian Ombudsperson reported on the general problem of prison overcrowding in Croatia, including in Bjelovar Prison, as one of the central organisational problems of the prison system which had generated the majority of complaints and violations of the rights of prisoners. The Ombudsperson also observed that prisons generally addressed the problem by converting various premises into dormitories and cells for prisoners and by providing greater freedom of movement inside the prisons. In the reports, the Ombudsperson constantly pointed out the need to adequately secure the rights of prisoners as guaranteed under the relevant domestic law and international standards.

In a general report on the conditions of detention in Croatia, no. U-X-5464/2012 of 12 June 2014, the Constitutional Court identified the problem of prison overcrowding and instructed the competent authorities to take more proactive measures in securing adequate conditions of detention for all types of detainees, as provided under the relevant domestic law and international standards. The relevant part of the report reads as follows:

The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), A/C.3/70/L.3, 29 September 2015, as the global key standards for the treatment of prisoners adopted by the United Nations General Assembly, in the relevant part provide:

On the basis of its visits to places of detention in diverse situations where it monitored conditions of detention and treatment of prisoners, the ICRC first published in 2005 a document titled ‘Water, Sanitation, Hygiene and Habitat in Prisons’, which was updated in 2012. In 2009 it held an international roundtable in order to discuss developments in the establishment of international guidance on the basis of which it published Supplementary guidance to the Water, Sanitation, Hygiene and Habitat in Prisons standards (available at www.icrc.org).

The ICRC observed that there is no universal standard for detainee accommodation space and that different organisations and fora had made recommendations in this context affecting various groups of countries. Likewise, the ICRC noted that in the absence of universal standards, national standards had been developed by numerous countries but they vary widely. For instance in Europe standards ranged from 4 sq. m in Albania to 12 sq. m in Switzerland. Moreover, some jurisdictions prescribed greater space for pre-trial detainees, others specified greater space requirements for women (for example, Iceland, Poland and Slovenia), and others still differentiated between adults and juveniles (for example, Hungary and Latvia).

In the absence of a universal standard, and based on its experience, the ICRC developed specifications concerning space requirements. For the multi-occupancy accommodation of prisoners this recommendation was 3.4 sq. m per person, including bunk beds and toilet facilities. The ICRC emphasised, however, that this was a recommended specification and not a standard. It stressed that in practical terms the amount of space required by a detainee could not be assessed only on the basis of a specific area measurement. A number of other factors contributed to the assessment of space requirements, including management factors and the facilities and services available in the prison. According to the ICRC, this reflected a comprehensive approach that provided a more accurate picture of the reality for detainees.

The ICRC therefore considered that the space factor alone was a limited measurement of the quality of life and conditions of detention. As such, it was merely a starting point when evaluating the conditions in which detainees were held. However, space norms could not be specified separately from the overall environment and thus the appropriateness of the ICRC's recommended specifications in any given situation would depend on a number of other factors including: the specific individual needs of, for example, sick, old or young prisoners, women and/or people with disabilities; the physical condition of the buildings; the amount of time spent in the accommodation area; the frequency and extent of opportunities to take physical exercise, work and be involved in other activities outside the accommodation area; the number of people in the accommodation area (to allow a degree of privacy and avoid isolation); the amount of natural light and the adequacy of the ventilation; other activities being undertaken in the accommodation area (such as cooking, washing, drying); other services available (such as toilets and showers); and the extent of supervision provided.

In particular, with regard to the amount of time spent in the cell, the ICRC emphasised that the longer a detainee was held in a confined accommodation space in any twenty-four hour period, the greater the amount of space he or she would require. In other words, the more hours a detainee spent engaged in positive activities in a safe, secure environment outside the accommodation area each day, the greater the possibility of mitigating the negative effects of close confinement. Positive activities in this context include work and education, meeting visitors, engaging in organised exercise or sport, spending extended periods of unstructured time in outdoor exercise areas, and participating in hobbies and recreation programmes.

The ICRC also made a distinction between the general accommodation requirements and accommodation requirements in emergency situations (such as political crisis, natural disasters, fire, riots, health crises in which large numbers of detainees needed to be separated from the others or events which required the transfer of detainees from a prison that had been damaged to another prison). The ICRC's initial indication that in such situations 2 sq. m per prisoner should be provided had been subsequently criticised by the experts. The emphasis was thus placed not on the indication of minimum requirement of personal space but the necessity of returning a prison to normal conditions (including minimum space specifications) as soon as possible. In particular, it was emphasised that in such instances it is necessary to avoid a situation in which the restrictions introduced to deal with the emergency situation developed into a chronic deficiency.

The Government reiterated the objection they had raised before the Chamber as to the non-exhaustion of domestic remedies (see paragraph 37 of the Chamber judgment). They contended that the applicant had not properly exhausted domestic remedies as he had failed in his constitutional complaint to provide details concerning the allegedly inadequate conditions of his detention, and had failed to cite the relevant provisions of the Convention and the Constitution.

The applicant maintained that he had properly exhausted domestic remedies as in his constitutional complaint he had specifically relied on section 74 of the Enforcement of Prison Sentences Act, which guaranteed a minimum of 4 sq. m of personal space, and had complained that this provision had not been complied with in his case. He thereby gave an adequate opportunity to the Constitutional Court to examine all the relevant circumstances of his case.

The Chamber observed that the applicant had complained to the Constitutional Court in substance that his rights had been violated on account of the lack of personal space and work opportunities in Bjelovar Prison. The Chamber therefore held that, by bringing his complaints in substance before the Constitutional Court, the applicant had properly exhausted domestic remedies.

The Court reiterates that the Grand Chamber is not precluded from examining, where appropriate, questions concerning the admissibility of an application under Article 35 § 4 of the Convention, as that provision enables the Court to dismiss applications it considers inadmissible ‘at any stage of the proceedings’. Therefore, even at the merits stage and subject to Rule 55, the Court may reconsider a decision to declare an application admissible where it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see, for example, Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 78, ECHR 2014).

However, having examined the Government's submission, the Court finds no grounds for reconsidering the Chamber's decision to dismiss the objection of non-exhaustion. Indeed, the Court has consistently held that the rule on exhaustion of domestic remedies under Article 35 § 1 of the Convention requires that the complaints intended to be made subsequently before it should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014; and also, generally, Gherghina v. Romania (dec.) [GC], no. 42219/07, §§ 84–87, 9 July 2015).

As regards the remedies concerning prison conditions in Croatia, the Court has held that a complaint lodged with the competent judicial authority or the prison administration is an effective remedy, since it can lead to an applicant's removal from inadequate prison conditions. Moreover, in the event of an unfavourable outcome, the applicant can pursue his complaints before the Constitutional Court (see Štitić v. Croatia (dec.), no. 29660/03, 9 November 2006; and Dolenec v. Croatia, no. 25282/06, § 113, 26 November 2009), which also has the competence to order his release or removal from inadequate prison conditions (see, inter alia, Peša v. Croatia, no. 40523/08, § 80, 8 April 2010). Accordingly, in order to satisfy the requirement of exhaustion of domestic remedies and in conformity with the principle of subsidiarity applicants are required, before bringing their complaints to the Court, to afford the Croatian Constitutional Court the opportunity of remedying their situation and addressing the issues they wish to bring before the Court (see Bučkal v. Croatia (dec.), no. 29597/10, § 20, 3 April 2012; and Longin v. Croatia, no. 49268/10, § 36, 6 November 2012).

In the present case the Court notes that, after having duly used all available remedies before the competent judicial authorities and the prison administration (see paragraphs 22–24, 26 and 29 above), the applicant brought his complaints before the Constitutional Court where he expressly complained, albeit in a succinct manner, about the problem of overcrowding in Bjelovar Prison. He relied on section 74(3) of the Enforcement of Prison Sentences Act which guarantees adequate personal space to detainees and alleged that this provision had not been complied with in his case (see paragraph 32 above). It follows that the applicant provided the national authorities with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention, namely of putting right the violations alleged against them (see, amongst many others, Jaćimović v. Croatia, no. 22688/09, §§ 40–41, 31 October 2013, and cases cited therein).

The Court thus finds that the applicant properly exhausted domestic remedies. The Government's preliminary objection must therefore be dismissed.

In view of the fact that the central tenet of the applicant's complaint before the Chamber concerned his alleged lack of personal space in Bjelovar Prison, the Chamber reiterated the general principles laid down in the pilot judgment Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, § 148, 10 January 2012), concerning the question of prison overcrowding. In particular, the Chamber reiterated that the test set out in Ananyev and Others for deciding whether or not there has been a violation of Article 3 of the Convention in respect of detainees' lack of personal space was three-fold, namely:

The absence of any of these elements created a strong presumption that the conditions of an applicant's detention were inadequate.

Accordingly, the Chamber stressed that where a detainee disposed of less than 3 sq. m of floor space a strong presumption arose that the conditions of detention had amounted to degrading treatment and were in breach of Article 3. However, in certain circumstances that strong presumption could be rebutted by the cumulative effects of the other conditions of detention.

In the light of the above principles, the Chamber observed that whereas it was true that the personal space afforded to the applicant fell short of the standard of 4 sq. m of personal space per prisoner set out by the CPT in its recommendations, it did not consider it so extreme as to justify in itself a finding of a violation of Article 3 of the Convention. The Chamber noted that occasionally the applicant's personal space fell slightly below 3 sq. m for short, non-consecutive periods of time, including one period of twenty-seven days, which the Chamber noted with concern. However, the Chamber observed that the applicant had been allowed three hours a day to move freely outside his cell; that the cells where he had been detained had unobstructed access to natural light and air, as well as drinking water; that he had been provided with an individual bed and nothing impeded him from moving freely within the cell. Moreover, the Chamber noted various out-of-cell activities which the prisoners at Bjelovar Prison had at their disposal, such as a library and access to recreational facilities.

In these circumstances, as the applicant's detention had been accompanied by sufficient freedom of movement inside the prison, and his confinement had taken place in an otherwise appropriate facility, the Chamber found that the conditions of his detention did not reach the threshold of severity required to consider his treatment to be inhuman or degrading under Article 3 of the Convention.

Soft law has been considered an inherently redundant and even pernicious contradictio in terminis. For some it is an empty catchphrase disguising an inflating conception of international law, an attempt to impose on States political engagements to which they did not wish to consent in the first place5.. For others, soft law is a ‘fig leaf for power’, hiding the extensive power and influence of some States and non-State actors in the international arena, a problematic instrument which circumvents State consent and therefore the domestic democratic ratification process6.. In both cases, the principle of sovereign and equal States is supposedly in jeopardy.

Admittedly, soft law is not included among the classical sources of international law listed in the Statute of the International Court of Justice (the ‘ICJ Statute’). Any jurisprudential or doctrinal attempt to extend that list carries with it a heavy burden of proof. This is all the more so, the critique goes, because deformalisation of sources of law would undermine the clarity and predictability provided by a binary approach to the definition of international law. Put simply, soft law would be nothing but a by-product of politics, causing an inexorable drift towards anarchy and randomness and thus a disservice to the essential function of international law7.. Claims for a return to all-or-nothing, black-and-white, binary simplicity, which alone could face the everyday complexity with its simplifying dichotomic rigour, have been raised against the cataclysmic Leviathan of soft law.

But the argument drawn from the ICJ Statute is not decisive in the pitched battle between opponents and advocates of soft law.

Article 38 of the ICJ Statute, which corresponds to Article 38 of the Statute of the former Permanent Court of International Justice, is not exhaustive in itself, in view, for instance, of the existence of unilateral legal acts8.or legal acts of international organisations. In the light of the Copernican change in international law after the Second World War9., it would be difficult to maintain that Article 38 is an immutable, enumerative provision, which petrified international law once and for all according to its stage of development in 1920.

Since the question is not closed by the ICJ Statute, it may usefully be reframed if soft law is confronted with hard law in order to verify their respective essential features and the added value of soft law, if any.

No unique substantive legal parameter is decisive for the purposes of distinguishing between hard and soft international law. Like hard law, soft law aims at setting a general rule of conduct for its addressees. Both exhibit a normative claim, with a command-like structure, which may be couched with more or less accurate terminology and precise content. Regardless of the multiple forms it assumes, soft law may appear as any other ready-to-apply norm of treaty or customary law. As a further complication, international law is not entirely hard in terms of its enforceability and justiciability. Traditionally, a lack of enforcement measures and judicial review makes international law soft.

Nevertheless, international soft law is distinct and distinguishable from hard law by its consequences. In spite of its normative claim, soft law may, in principle, be disregarded without the classical consequences of responsibility for internationally wrongful acts. But its non-observance may bring about adverse consequences. Hence, the addressees of soft law are not entirely free not to follow it, because they may have to endure other negative consequences of such a choice. These are not merely moral, political or reputational in nature.

Where treaty law exists, complementary soft law may reveal the intention of its authors10.. While strengthening the normative commitments embedded within the binding aspects of treaty law, soft law adds to its normative density and coherence11.. It also facilitates the application of binding instruments by resolving complex, technical issues that were not envisaged when they were approved or deadlocks that had not been anticipated. It adapts them more easily to the changing needs of organisations, institutions and societies12..

Where there is no codification at all or insufficient codification of international law, soft law counts as a relevant practice of international organisations, States and non-State operators. When a legal issue becomes the object of international soft law, it is no longer part of the reserved domain of States and this paves the way for future binding international law based on State consent13.. It may ultimately be formative of the opinio juris and State practice that generates customary international law14..

Significantly, no effort has been made until today to shed light on the way the Council of Europe — and especially the Court — uses soft law, in spite of the proliferation of all sorts of deformalised sources of law in its legal discourse and some criticism as to the muddying of the waters between law and politics in the Court's reading of the Convention15.. The following reflections seek to provide such conceptualisation.

The Convention cannot be interpreted in a vacuum, but must be interpreted in harmony with other international law and soft law. Ever since Golder, account must be taken of any relevant principles and rules of international law applicable in the relations between the parties, as indicated in Article 31 § 3 (c) of the Vienna Convention on the Law of Treaties of 196916.. From the Court's perspective, there is no methodological difference between the interpretation of international human rights law and other international law, or between contractual and law-making treaties, and therefore it assumes that the same interpretative methods can be applied in both fields of international law. Thus the European Court of Human Rights (the ‘Court’) departs from the contested position that there are ‘self-contained regimes’ within international law17.. As Judge Rozakis so elegantly put it, the judges of Strasbourg ‘do not operate in the splendid isolation of an ivory tower built with material originating solely from the [Court]'s interpretative inventions or those of the States part[ies] to the Convention’18..

This methodology is warranted by the Court's cardinal principle of interpretation to the effect that the Convention must be interpreted in the light of present-day conditions19.. It was in the seminal case of Tyrer v. the United Kingdom that the Court for the very first time used the leitmotiv of ‘the Convention as a living instrument’, whose interpretation has to take account of evolving norms of national and international law20.. Deeply entrenched in American21.and Canadian22. constitutional law since the early twentieth century, this interpretation technique was introduced in European human rights law in 1978.

In Tyrer, confronted with the arguments advanced by the Attorney General of the Isle of Man under former Article 63 of the Convention that, ‘having due regard to the local circumstances in the Island’, the continued use of judicial corporal punishment on a limited scale was justified as a deterrent, the Court replied (§ 38):

By concluding that the Isle of Man must be regarded as sharing fully that ‘common heritage of political traditions, ideals, freedom and the rule of law’ to which the Preamble to the Convention refers, the Court rejected the idea that there were local requirements affecting the application of Article 3 in the Isle of Man and, accordingly, found that the applicant's judicial corporal punishment constituted a violation of that Article.

Accordingly, from the very beginning of the Court's existence, the evolutive interpretation of the Convention was closely linked to the need for a consensual reading of the text, based on consideration of the domestic legal framework of the ‘great majority’ of the member States of the Council of Europe and, ultimately, of the common heritage of political traditions, ideals, freedom and the rule of law, to which the Preamble makes reference.

In Strasbourg, soft law has provided, and still provides, the most important source of crystallisation of the European consensus and the common heritage of values. In fact, soon after Tyrer, the Court took the fundamental step of enlarging the array of sources of law in the light of which the European consensus may be established. In Marckx v. Belgium23.the Court took into consideration the European shared values based on the domestic law of the ‘great majority’ of member States of the Council of Europe, as well as the 1962 Convention on the Establishment of Maternal Affiliation of Natural Children, prepared by the International Commission on Civil Status, and signed but not ratified by the respondent State, the Council of Europe 1975 Convention on the Legal Status of Children born out of Wedlock, not even signed by the respondent State, and finally the Committee of Ministers Resolution (70) 15 of 15 May 1970 on the social protection of unmarried mothers and their children. To the argument that the 1962 and the 1975 conventions had only a small number of parties, the Court replied (ibid., § 41):

Mirroring the interpretative techniques of constitutional courts, the Court went even further and modulated the effects of its judgment in view of the principle of legal certainty, ‘which is necessarily inherent in the law of the Convention as in Community Law’, dispensing the respondent State from re-opening legal acts or situations that antedated the delivery of the judgment. For that purpose, it made reference to the fact that ‘a similar solution [was] found in certain Contracting States having a constitutional court: their public law limit[ed] the retroactive effect of those decisions of that court that annul[led] legislation.’24.As if it were a European Constitutional Court, the Court resorted to the principle of legal certainty to accord itself the implied power of modulation of the temporal effect of its own judgments.

Later on, in Mazurek v. France25., the Court again invoked the Convention on the Legal Status of Children born out of Wedlock, which at that time had been ratified by only a third of the member States of the Council of Europe, but not by the respondent State, as evidence of the ‘great importance’ attached by member States to the equal legal treatment of children born out of wedlock.

In the cases of Christine Goodwin26., Vilho Eskelinen27., and Sørensen and Rasmussen28., the Court was guided by the European Union's Charter of Fundamental Rights, even though this instrument was not yet binding. Furthermore, in McElhinney29., the Court took note of the European Convention on State Immunity, which at the time had been ratified by eight member States, not including the respondent State. In Glor30., the Court referred to the Convention on the Rights of Persons with Disabilities as the basis of ‘a European and worldwide consensus on the need to protect people with disabilities from discriminatory treatment’, despite the fact that the relevant facts had taken place before the adoption of the Convention by the United Nations General Assembly and the respondent State had not ratified the Convention at the time of the Court's judgment.

Finally, in the landmark case of Demir and Baykara v. Turkey, after reiterating the principle that:

and having regard to the developments in labour law, both international and national, and to the pertinent practice of Contracting States, the Court concluded that the right to bargain collectively with the employer had, in principle, become one of the essential elements of the right to form and to join trade unions for the protection of the interests set forth in Article 11 of the Convention. For that purpose, it cited the relevant ILO conventions, which the respondent State had ratified, the corresponding interpretations of the ILO Committee of Experts, as well as Article 28 of the European Union's Charter of Fundamental Rights, Article 6 § 2 of the European Social Charter, which Turkey had not ratified, the European Committee of Social Rights' interpretation of this Article, and Principle 8 of Recommendation No. R (2000) 6 of the Council of Europe's Committee of Ministers on the status of public officials in Europe31..

In other words, for the purposes of interpreting the Convention, the legal relevance of human rights standards set out in other treaties and conventions depends neither on the number of their respective ratifying parties, nor on the number of Council of Europe member States bound by them, nor even on whether the respondent State itself has ratified them. Thus, under European human rights law, hard law is profoundly interwoven with soft law.

Evolutive interpretation of the Convention has also led the Court to support its reasoning by reference to norms emanating from other Council of Europe organs, even though those organs have no function of representing States Parties to the Convention, whether supervisory mechanisms or expert bodies. In order to interpret the exact scope of the rights and freedoms guaranteed by the Convention, the Court has made use, for example, of the work of the European Commission against Racism and Intolerance (ECRI)32.and the European Commission for Democracy through Law (the Venice Commission)33..

From the seminal formulation of the European consensus in Tyrer emanates a vision of a deliberative, international democracy in which a majority or representative proportion of the Contracting Parties to the Convention is considered to speak in the name of all and is thus entitled to impose its will on other Parties. As a matter of constitutional principle guiding the Council of Europe, consensus is decoupled from unanimity. Consensus as a volonté générale can still exist even if not all Contracting Parties concur in the same reading of the Convention34..

As has been shown above, it cannot be argued today that the founding fathers did not want this to happen, and that States have been trapped into engagements that they did not agree upon35.. The now worn-out argument of lack of State consent is sometimes accompanied, as the other side of the coin, by the no less démodé critique about the Court's lack of political legitimacy to interpret innovatively the Convention, still less to create law36., using soft law to circumvent the competent legislative bodies and to flout the principles of democracy, rule of law and subsidiarity37.. Underlying this speech is almost invariably the sovereignist leitmotiv in dubio pro mitius.

The Preamble sets the Convention against the background of the Council of Europe's general aims, with a view to creating ‘greater unity’ between its member States, based on ‘a common understanding and observance of the Human Rights upon which they depend’. In the Statute of the Council of Europe, the language used makes reference not only to a ‘closer unity between all like-minded countries of Europe’, but also to an ‘organisation which will bring European States into closer association’. The very first Article of the Statute sets as the aim of the Council ‘to achieve greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress’. In the explicit terms of the Statute, the realisation of these ideals and principles warrants ‘agreements and common action’ in all relevant areas of social life (economic, social, cultural, scientific, legal and administrative matters) and ‘in the maintenance and further realisation of human rights and fundamental freedoms’. No better words could proclaim the primacy of human rights obligations in all areas of governance. The principle in dubio pro persona could find no better formulation. Social and economic progress is thus intimately connected to the progress of human rights, representing two sides to the same coin.

This being so, evolutive interpretation, European consensus and hardening of soft law compose the three pillars of the European normative system within which State consent is relevant. Based upon these pillars from the very beginning, and animated by a common quest for ‘economic and social progress’, the Council of Europe legal order can no longer be confused with the traditional international accord of juxtaposed egoisms. Sovereignty is no longer an absolute given, as in Westphalian times, but an integral part of a human rights-serving community38..

In this context, the Convention cannot but be interpreted in the light of the formally binding ‘agreements’ (i.e. treaties)39.and the immense plethora of formally non-binding ‘common actions’ performed by the political and technical bodies of the Council of Europe40., such as recommendations, guidelines and declarations of its Committee of Ministers41.. Furthermore, the Convention itself calls for an open-minded approach to international law and soft law, since it is inspired by the Universal Declaration on Human Rights, as the Preamble states, and remains open to other legal instruments, both domestic and international, when these offer a better human rights protection (Article 53 of the Convention). In sum, this interpretative latitude is dictated by the letter and the very nature and purpose of the Convention itself.

In European human rights law, a formal theory of sources of law is still prevailing. Based on the doctrine that the International Court of Justice expounds in its North Sea Continental Shelf and Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) judgments42., the Court admits that a treaty provision may become customary international law, if the following conditions are fulfilled: the provision concerned must be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law; there must be corresponding settled State practice and evidence of a belief that such practice is rendered obligatory by the existence of a rule of law requiring it (opinio juris sive necessitatis)43.. The Court has also expressed its position on the existence of peremptory norms in international law, such as the prohibition of torture44.or the prohibition of genocide45..

Yet, as has been demonstrated, there is no water-tight, binary distinction between hard law and non-law, since European human rights law evolves by means of a rich panoply of sources that do not necessarily share the classical, formal features of hard international law46.. The ‘further realisation of human rights’ calls for a certain degree of deformalisation, without abandoning the formal theory of sources of law. In fact, in Strasbourg there has never been a monopoly of formalism in the ascertainment of international law.

However, the inherent deformalisation of European human rights law is not a synonym of nihilist dissolution of legality, and there is a very fundamental reason for this. In the Council of Europe's legal order, State consent is framed within the context of a cosmopolitan perspective of the universality of human rights and a dialogic understanding of the common heritage of values of European societies.

In the Council of Europe, the recognition rule is no more a Lotus-type47., State-centred, narrowly bilateral, exclusively voluntaristic, top-down norm-creation mechanism, but a democratic-type, individual-centred, broadly multi-lateral, purposefully consensual, bottom-up norm creation mechanism which involves European States and other European and non-European non-State actors. Distancing itself from an outdated jus inter gentes, the Council of Europe legal order has become a truly jus gentium, based on a participated, accountable and multi-level international law-making system which is not the preserve of States48..

Cosmopolitanism links the Council of Europe legal order with the world, as much as the dialogue with the European domestic legal orders, and notably with their apex domestic courts, links it with the values of European society. Since the Council of Europe normative order already meets standards of democracy, its recognition rule is not linked to democratic decision-making processes on the domestic level. Soft law, which does not require formal domestic ratification, is in any case not exempt from democratic control within the Council of Europe, performed by the Committee of Ministers, the Parliamentary Assembly and, ultimately, the Court, as a politically legitimised guarantor of the Convention (Articles 19 and 22 of the Convention). Furthermore, the involvement of States and grass-roots non-State actors in the exercise of law-making powers is not only testament to the principle of subsidiarity, but indeed reinforces the democratic nature of the process and the responsiveness of the international public policy-making system towards the European people.

Put differently, the European normative order exists beyond sovereign statehood, bilateralism and opposability. Since the State is not the sole possible subject capable of creating international law, a State-will theory of sources of law gives way to a democratic international community-based normativity theory.

The obvious higher degree of complexity of such a recognition rule should not be misunderstood as entailing a higher degree of legal uncertainty, and therefore as meaning that the value of the rule of law diminishes or entirely vanishes. There is no necessary correlation between the former and the latter. The degree of legal certainty will rather depend on the substance of the legal discourse49.. In a world of decentralised and deformalised international law, legal certainty is more a question of substance than one of form and procedure, and certainly not a question of the more or less transparent intent of the stakeholders. The touchstone of legal certainty is neither the form which encapsulates the norm nor the procedure by which the norm is created, but definitely the substance of the norm. This is all the more so in a constitutional order, like that of the Council of Europe, where the rule of recognition is not neutral and value-free, but substantive and value-charged.

In the continuum between hard law and soft law, several factors may harden the text. Like a degradé normatif50., the gradual normativity of the text increases with the number of these factors that are present and decreases with their absence51.. In this gradualist logic, it is ultimately up to the Court to decide ‘how much weight’ to attribute to these hardening factors of soft law52..

Soft European human rights law may be hardened by certain factors that relate either to the rule-making procedure or to the rule-application procedure. These are ‘building bricks in a wall of normativity’53..

First, the prescriptive language adopted in a text or the label attached to the instrument is indicative of its normative nature. A text with a prescriptive language or label must be read, in principle, as a standard-setting text, which goes beyond a mere declaratory statement or a purely programmatic assertion.

Second, the degree of linguistic accuracy and content precision of the text is a clear indication of its normative nature. The more accurate the terminology of the text and the more precise its content, the stronger its normative claim54.. An extensive, detailed description of what is being regulated speaks in favour of a hardened law, which leaves no room for grey areas.

Third, the existence of travaux préparatoires, explanatory reports and commentaries, with a thorough discussion of the causes and consequences of the policy choices made, increases the text's normative density.

Fourth, the complexity of the deliberation procedure, including the voting pattern, is an additional hardening factor55.. Widespread acceptance of the text tends to legitimise its normative claim.

Fifth, wide publicity given to the normative text seeks to secure general awareness and effective compliance from its addressees.

Sixth, the delegation of authority for interpretation and conflict resolution to an independent third body and the existence of follow-up mechanisms strengthen the compliance obligation56.. Norm inobservance may have not only a reputational or political cost, but also other negative consequences, such as an obligation to justify or even change the infringing conduct and provide remedies57.. Accountability mechanisms reinforce the counter-factual force of the normative text.

Seventh, and finally, subsequent practice confirming or developing the standards set out in the text reinforce the standard-setting function of the text58.. Even before reaching the point of crystallisation of customary law, the repetition of soft law by the same or different public authorities hardens its normative claim59.. While the mere accumulation of non-law instruments cannot per se create international law, the emergence of an opinio juris, if accompanied by other hardening factors, can transmute the latter into the former, by sliding it up the scale of international normativity and thus integrating it into the Council of Europe's binding normative system.

The Court considers these hardening factors of its own motion, even when the parties have not invoked them in their pleadings, or where they have occurred after the facts complained of60.. It is also telling that, in the eyes of the Court, they are not a factum, to be regarded as a mere sociological reality, but a source of jura, subject to the principle jura novit curia.

Once hardened by one or more of the above-mentioned factors, soft law produces the same legal effects as hard law, regardless of the absence of the formal and procedural requirements of the latter. Hardened soft law is on a par with binding international law. First, hardened soft law has an entitling effect, so that any State acting in conformity with hardened soft law cannot thereby be committing an internationally unlawful act, and can invoke it before a court of law or arbitrator. Second, hardened soft law is an imperative constraint, the flouting of which constitutes an internationally unlawful act. Thirdly, hardened soft law also has an abrogatory effect on other conflicting law. Fourthly, hardened soft law may not be re-softened. Once it has passed the hard-law threshold, there is no turning back. The softening of law has its limit in the constitutional force of the Convention and its protocols. I will now take this line of argument one step further.

There is a major caveat to the acknowledgement of the role of soft law in European human rights law. Let there be no misunderstanding: the body of European human rights as posited in the Convention and the additional protocols is hard law, and the authority for their interpretation is delegated to an independent third body, the Court. This is very hard law and it does not bow gracefully to overriding political demands, regardless of the size of the demanding majority, prevailing even over conflicting constitutional law of the member States of the Council of Europe61..

Decidedly, the constitutionalisation of the European legal order puts an absolute bar on the softening of law. Hard European human rights law may not be softened. Softening of existing hard international law would be tantamount to circumventing binding international obligations. This would evidently constitute a fraudulent evasion of international law, defeating the purpose of the Convention and the aim of the Council of Europe. When implementing the Convention and the Court's judgments, as any other agreement and common action of the Council of Europe, member States have an enforceable obligation to ‘collaborate sincerely and effectively in the realisation of the aim of the Council', as set out in Article 3 of the Statute of the Council of Europe. Should it fail to fulfil its Article 3 obligation, any member State may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7 of the Statute; and if such member does not comply with this request, the Committee may decide that it has ceased to be a member of the Council as from such date as the Committee may determine.

Hence, soft law must not be a vehicle of political considerations to dilute or undermine the legal force of existing hard obligations. In practice, the obligatory law and non-obligatory non-law conceptual distinction still holds much water. In European human rights law, the drawing of the line between law and non-law is crystal-clear in order to preclude the downgrading of a binding norm of hard law to soft law. The boundary line is only blurred in order to upgrade a non-binding norm of soft law to hard law.

In a few words, the relationship between hard and soft law in European human rights law is a one-way street: where there is hard law, soft law may enrich it, but it may not weaken it. Were soft law to weaken existing hard law, it would be fraudulent, a breach of the European human rights normative threshold and thus a pathological phenomenon of international normativity. Soft law is one of the ways in which European law development may occur, not a way in which it regresses.

Where there is no hard law, there is evidently no relationship between two poles, and soft law may exercise alone its normative claim, in accordance with the relevant hardening factors that it puts forward.

Second Part

No international organisation or body has done as much for the development of prison law as the Council of Europe and particularly its Committee of Ministers and its Committee for the Prevention of Torture. Composed of highly qualified independent experts, the Committee is tasked with the implementation of prison law standards in any place of detention in Europe and elsewhere, under the jurisdiction of any member State of the Council of Europe62.. The Committee of Ministers' resolutions and recommendations, the CPT General Reports and the CPT standards63.are remarkable sources of Council of Europe soft law in this field. Their language is undoubtedly prescriptive (‘standards’, ‘rules’) and technically rigorous. Their content excels in precision. Normally, explanatory reports or commentaries enrich the normative content of the rules set out in the text. Preparatory work by experts, providing a multidisciplinary vision of the pertinent issues, provides a solid basis for the policy choices made by a unanimous decision of all the stakeholders. Wide dissemination of these standards fosters effective compliance by member States of the Council of Europe. These are not virtual, de lege ferenda or in fieri standards, but truly normative instruments which ‘provide guidance as to the approach which should be taken to interpreting’ the Convention64..

The Court itself has stated repeatedly that, in spite of their strictly non-binding nature, it attaches ‘considerable importance’ or ‘great weight’ to these normative instruments, ‘which are regularly taken into account by the Court in its examination of cases concerning ill-treatment’65.. It did so with regard to, among many others, Resolution (73) 5 of the Committee of Ministers66., Resolution 76(2) of the Committee of Ministers on the treatment of long-term prisoners, Recommendation No. R (87) 3 on the EPR (revised and updated by Recommendation Rec(2006)2)67., Recommendation No. R (98) 7 of the Committee of Ministers to member states concerning the ethical and organisational aspects of health care in prison, Recommendation Rec (99) 4 on principles concerning the legal protection of incapable adults, Recommendation 2003(23) on the management by prison administrations of life sentence and other long-term prisoners, and Resolution 2010 (2014) of the Parliamentary Assembly of the Council of Europe on child-friendly juvenile justice: from rhetoric to reality68..

In paragraphs 113 and 141 of the judgment, the majority depart from this perspective. They no longer consider that the CPT standards have ‘considerable importance’ or ‘great weight’, but only affirm that the Court ‘remains attentive to the standards developed by the CPT’. In blunt terms, the majority downgrade the importance of the CPT's work. This is a regrettable step backwards in the protection of prisoners and other persons in detention in Europe. But that is not all.

The Committee of Ministers’ normative choice must be seen against the background of the hardening of prison soft law in Europe and worldwide, a point which the majority fail to consider.

Worldwide, there has been a persistent effort of the United Nations and other international organisations and bodies to extend the scope and reinforce the accuracy of the 1957 Standard Minimum Rules for the Treatment of Prisoners, namely by approving the 1985 UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules)69., the 1988 UN Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment70., the 1990 UN Rules for the Protection of Juveniles deprived of their Liberty (the Havana Rules)71., the 1990 UN Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines)72., the 2007 Istanbul statement on the use and effects of solitary confinement73., the 2010 UN Rules for the Treatment of Women Prisoners and Non-Custodial Sanctions for Women Offenders (the Bangkok Rules)74., and, most recently, the new, much more detailed version of the Standard Minimum Rules (the 2015 Mandela Rules)75..

On 10 December 1984 the General Assembly of the United Nations adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Committee against Torture, composed of 10 independent members and entrusted with broad powers of examination and investigation, was established pursuant to Article 17 of that Convention and began to function on 1 January 1988.

This effort has been emulated at regional level, with the 1996 Kampala Declaration on Prison Conditions in Africa76., the 1999 Arusha Declaration on Good Prison Practice77., the 2002 Ouagadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reforms in Africa78., the revised 2006 EPR and the 2008 Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas79..

The hardening of prison soft law is particularly visible in Europe. The majority do not take into account the fact that the revised 1987 EPR and explanatory report did not deal with the appropriate personal space in individual cells and multi-occupancy accommodation in prisons80., but the 2006 EPR revision did fill that lacuna, by providing in the Commentary to Rule 18 a clear indication of the normative standard for European prisons along the lines of previous CPT work. The purpose of this exercise, let us not forget, was to ‘strengthen’ the rules about accommodation, as the Commentary itself states81..

Worse still, the majority do not seem to care about the fact that the CPT position was confirmed politically at the highest level within the Council of Europe, by its own ruling body, the Committee of Ministers82.. The majority ignore the fact that the Commentary to Rule 18 of the EPR took on board, to the letter, the CPT standards on the minimum space in multi-occupancy accommodation in prisons. It is worth recalling the tenor of that Commentary83.:

The EPR and the corresponding Commentary have the seal of the highest political body of the Council of Europe, its Committee of Ministers, which recommended that governments of member States ‘be guided in their legislation, policies and practice by the rules contained in the appendix to this recommendation’ and ‘ensure that this recommendation and the accompanying commentary to its text are translated and disseminated as widely as possible and more specifically among judicial authorities, prison staff and individual prisoners’. Such a clear and unanimous expression of political will and legal understanding that ‘Council of Europe member states continue to update and observe common principles regarding their prison policy’ should not so easily be discarded by the majority84.. The majority cannot at one and the same time refer to the accommodation standards of the EPR and ignore what their purpose is, according to the relevant Commentary itself. Such superficial interpretation would only pay lip-service to the EPR. In the Commentary's own very clear words, the EPR are intended to ‘compel Governments to declare by way of national law specific standards, which can be enforced’ and these enforceable standards include certain European ‘minimum standards’ in terms of accommodation: first and foremost, ‘there must be a clear minimum space’.

Moreover, by ignoring the ‘strengthened’, ‘compelling’, minimum standards on accommodation set out by the EPR and the Commentary thereto, the majority are also setting aside the penological work performed by the PC-CP of the CDPC which is at the root of the EPR85.. Without any scientific background study to contradict the PC-CP experts' opinion, the majority simply affirm ex cathedra their own different point of view. In fact, the majority do not adduce any expert opinions or scientific analysis that would be capable of gainsaying the unanimous view of international experts expressed in soft law instruments86.. No consideration is given to the well-established scientific correlation between prison overcrowding, lack of proper living conditions and negative psychosocial effects on prisoners, including emotional instability, aggressiveness and self-harm87.. In umbris est potestas.

Prison overcrowding, as a systemic problem of European criminal justice systems, has been on the agenda of the Court since 200988.. The structural nature of the problem and the consequent need to address it in general terms were first acknowledged in respect of Polish prisons89.and subsequently also Russian remand prisons90., Italian prisons91., Belgian prisons92., Bulgarian prisons93., Hungarian prisons94.and Lithuanian prisons95..

Resocialisation is the primary purpose of imprisonment of human beings96.. Prison overcrowding, with its physical, psychological and social consequences, is the first obstacle to the implementation of any resocialisation programme. Adequate personal living space is a sine qua non condition for the resocialisation of prisoners97.. This absolute minimum space requirement is not essentially different for mentally fit or unfit prisoners, remand prisoners, prisoners serving sentences for the first time or recidivists, since there is no objective reason from an Article 3 perspective to subject mentally fit persons to a different standard of protection from that applicable to mentally unfit persons, still less to distinguish between mentally fit prisoners according to the harshness of their sentence or to whether they have been remanded or finally convicted.

In the absence of any universal standard, the International Committee of the Red Cross (ICRC) has recommended 5.4 sq. m per person in single-cell accommodation (excluding toilet facilities) and 3.4 sq. m per person in shared or dormitory accommodation (including toilet facilities)98.. The ICRC has calculated the space needed for sleeping on the bed as 1.6 sq. m and toilet and shower space as 1.2 sq. m. In emergency situations99., the ICRC initially stipulated that the floor space in cells and dormitories must never be less than 2 sq. m per person, but more recently rescinded that recommendation and only provides guidance for returning a prison to normal conditions (including minimum space specifications) ‘as soon as possible’.

In the European penological context, the ‘strengthened’ 2006 EPR standards on accommodation are more generous. As the Committee of Ministers and the CPT have stated100., the minimum living space of each prisoner must not be less than 6 sq. m in a single-occupancy space, excluding the sanitary facility, and 4 sq. m per person in a shared space, excluding a fully-partitioned sanitary facility, with at least 2 m between the walls of the cell and at least 2.5 m between the floor and the ceiling of the cell. For multiple-occupancy cells of up to four inmates 4 sq. m should be added per additional inmate to the minimum living space of 6 sq. m. Thus, this bare minimum of personal living space in prison facilities is an absolute condition whose non-fulfilment entails per se a violation of Article 3 of the Convention.

Moreover, the EPR require domestic law to set specific minimum requirements in respect of the accommodation provided to prisoners, with particular regard being had to the floor space, the cubic content of air, lighting, heating and ventilation (Rules 18.1–18.3). It is therefore appropriate to establish the maximum capacity (numerus clausus) for each prison through the definition of space per inmate as a minimum expressed in square and cubic meters. Hence, prison capacity must not be assumed to be a slippery concept whose elasticity can be used to manipulate prison reality and make overcrowding more or less apparent. Preventive remedies should be immediately available if and when the prison capacity minima are disregarded.

Quite contradictorily, the majority circumvent the ‘absolute’ nature of the Article 3 prohibition and the ‘relevant minimum standard’ for multi-occupancy accommodation in prisons (see paragraphs 110 and 113 of the judgment) by considering that the assessment of the level of severity required for any treatment to fall within the scope of that Article is ‘relative’ and dependent on ‘a comprehensive approach to the particular conditions of detention’ (see paragraphs 122 and 123 of the judgment).

In fact, the majority use the ‘cumulative effect’ approach in two very different senses: on the one hand, the cumulative effect of ‘compensating factors’ serves to attenuate the Article 3 obligations, in order to exonerate the respondent Government of any Convention liability (see paragraphs 137 and 138 of the judgment); on the other hand, the cumulative effect of ‘aggravating circumstances’, such as poor material conditions and lack of out-of-cell activities, can be considered inhuman or degrading, even in the case of sufficient cell space (see paragraph 140 of the judgment).

I agree with the latter argument, but disagree with the former.

Where the prisoner has had at his or her disposal sufficient personal living space, other negative aspects of the material conditions of detention may lead to the finding of a violation of Article 3. Whenever the adequate size of the personal living space is coupled with inadequate conditions of sleeping, lighting, ventilation, heating, sanitation and health care, the ill-treatment of the prisoner must still unequivocally be censured.

In the case of post-trial detention of mentally unfit prisoners, as well as mentally fit prisoners sentenced to a term of five years or more, the inexistence of an individual sentence plan or, where there is one, any serious shortcomings in its implementation will be major aggravating factors. Personal living space in the prison should be viewed in the context of the applicable resocialisation regime101.. The inexistence of health, exercise, education and work programmes, or the existence of deficient programmes, will worsen the prisoner's situation. Being closely linked to this aspect, any breach of the rules on the separation of prisoners is also a factor to be considered.

But I cannot agree with the submission that the lack of sufficient personal living space can be offset by the presence of other material conditions, such as personal sleeping space, access to natural light during the day and electric lighting at night, ventilation, heating, proper hygiene conditions and adequate food. Otherwise, a cumulative effect of ‘compensating’ factors would water down the absolute Article 3 standard, inviting the prison authorities to go down a slippery slope with no objective limits102..

This is exactly the temptation to which the majority succumb. The majority refer to a rebuttable, ‘strong’ presumption of a violation of Article 3 when 3 sq. m of personal space in the cell is not guaranteed, with the possibility for the Government of rebutting it if they can show that the periods of deprivation of such personal space were ‘short, occasional and minor’. But the majority do not provide for the slightest definition of these limits. In times of economic crisis, the duty to protect the dignity of detained persons is more relevant than ever, and for that purpose to be fulfilled clear rules are needed, as the European and the UN anti-torture bodies have recently stated103.. In addition, the majority include space occupied by furniture in the available surface area (see paragraph 114), even though this may diminish considerably the capacity to circulate freely within the cell.

Furthermore, the offsetting factors referred to by the majority should already be part of the normal conditions within a prison, such as ‘sufficient freedom of movement outside the cell and adequate out-of-cell activities’, and even very broadly speaking the existence of ‘an appropriate detention facility’. There is a serious logical flaw in this reasoning. Here the majority's criteria can hardly withstand Ockham's razor. Pluralitas non est ponenda sine necessitate.

In an absolutely redundant way, the majority make use of what should be ordinary features of a prison facility in order to justify an extraordinarily low level of personal space for individuals in detention. For the majority, normal living conditions justify abnormal space conditions. Logic would require that extraordinary negative circumstances be offset only by extraordinary positive counter-circumstances. This is not the case in the majority's logic. No extraordinary positive features of prison life are required by the majority to compensate for the deprivation of each prisoner's right to adequate accommodation in detention.

The applicant spent 240 days in detention in the present case. According to the floor plans of Bjelovar Prison, which the Government provided to the Court and which are not disputed by the applicant, he was allocated 4 sq. m or more of personal space in the cells for a non-consecutive period of 70 days in total.

Again according to the same data, the applicant spent 170 non-consecutive days with less than 4 sq. m of personal space in the cells.

Of the total amount of 170 days of detention with under 4 sq. m, the applicant spent fifty days with less than 3 sq. m.

In other words, a simple statistical assessment of the available data shows that the applicant spent more than two thirds of his detention in overcrowded cells, according to the standard of the Committee of Ministers, the CPT and PC-CP of the CDPC. The data above show that the applicant spent 29.1% of his detention time with 4 sq. m or more of personal space in the cells and 70.9% with less than that. Of the total amount of days in detention, 20.8% were spent with less than 3 sq. m of personal space in the cells. It is beyond my understanding how the majority can argue that 20.8%, i.e., one fifth of the applicant's detention days, represents a ‘short, occasional and minor’ reduction of the required minimum personal space. With such a statistically odd evaluation, the majority totally dilute the common meaning of these adjectives. This is particularly grave in view of the additional flagrant breach of national law, which was aligned with the Council of Europe's 4 sq. m standard. In fact, the same white-washing exercise had already been performed by the Constitutional Court, which used some Strasbourg case-law to bluntly disregard national law.

Finally, the majority have not considered two main complaints that the applicant constantly presented to the national authorities. First, he wanted to work and no work possibilities were provided in the prison facilities where he was detained. The majority confuse the purposeful, productive occupation of the prisoner's time with watching TV most of the day and occasionally playing basketball or ping-pong for a couple of hours. Lack of productive occupation of those willing to work is no less degrading than unpaid or poorly paid work.

Second, he was not given any real possibility of meeting his relatives or of keeping in contact with his family. Bearing in mind that his family could not afford to travel to the prison, which is not disputed by the Government, arrangements should have been made by the prison authorities to provide the applicant with more telephone time than a mere twenty minutes per week, with an additional ten minutes on public holidays. Moreover, it is also unclear from the Government's arguments why the applicant's request for transfer to a prison facility closer to his family's place of residence was first ignored and later repeatedly rejected.

Set against the backdrop of the overcrowded cells where he had to live, these shortcomings only aggravated the violation of Article 3 of the Convention.