France: Constitutional Council calls for a new law to challenge inhumane and degrading conditions of detention

Article by Fair Trials

The French Constitutional Council has called for a new law that would allow people being held in pre-trial detention to challenge inhumane and degrading conditions.

This decision follows a similar ruling from the French Court of Cassation this summer and is a further indictment of prison conditions in France which, along with the absence of an effective remedy, were condemned by the European Court of Human Rights (ECtHR) in January.

On 2 October 2020, in response to a prejudicial question from the Court of Cassation, the French Constitutional Council ruled that the absence of judicial remedy to put an end to inhumane and degrading conditions of detention is unconstitutional. The legislator has  until 1 March 2021 to enact a new law to this effect.

Fair Trials welcomes this ruling, which will give people held in prison the ability to challenge poor conditions and overcrowding.  If judges find that conditions are not acceptable, they should be entitled to look at alternative solutions, or even release.  Although the Council’s decision focused on pre-trial detention, the new law is expected to cover all those who are held in detention.

Currently, French law allows judges to make decisions about pre-trial detention based on a specific set of criteria: public order, the reasonableness of the detention duration and, in some cases, the state of health of the detained person. Prison conditions have not been considered until now.

While the ruling is welcome,  it also highlights the need to reduce pre-trial detention in France and for the French Government to reconsider its approach to imprisonment overall. Overcrowding in French prisons is largely driven by the excessive use of pre-trial detention. On average, over 30% of the French prison population are people who are legally innocent but being held in detention prior to their trial. As Fair Trials has long argued, pre-trial detention should be a measure of last resort and the French Government should do more to reduce the number of legally innocent people being detained.

During the COVID-19 pandemic, there was some progress on this issue. Thousands of prisoners ending their sentence were released in France. The slowdown in court activity also led to a reduced number of detentions.  This meant that for the first time in 20 years, there were less prisoners than prison spaces.  With 58,926 detained persons at the end of May, compared to 72,500 on 16 March,  and with around 61,000 operational places, the average density of French prisons stood at 96%. Unfortunately, none of these measures had an impact on people being held in pre-trial detention.

Constitutional Council ruling

The Constitutional Council made clear that both the protection of human dignity and the right to judicial remedy are constitutional principles. It noted that while a person could challenge their conditions of detention before an administrative judge, the measures available to the administrative courts do not guarantee, in all circumstances, that the inhumane and degrading conditions of detention will be ended.

ECtHR condemnation of prison conditions

The Constitutional Council’s decision follows the historical condemnation of France by the ECtHR last January for its inhumane and degrading prison conditions and lack of effective remedy. Noting that this was a structural problem, the ECtHR recommended that the French government adopt general measures to improve conditions of detention, put an end to overcrowding and offer an effective remedy to detained people whose fundamental rights have been violated as a result of these conditions.

In July, the Court of Cassation held that judges had to take account the ECtHR ruling without waiting for legal reform. In practice, the Court of Cassation ruled that judges must examine allegations of inhumane and degrading conditions of detention made by people held in pre-trial detention, provided that these are ‘credible, precise, current and personal’. If such conditions persist, the judge must order the release of the person and, if necessary, alternative measures such as house arrest.

Until the new law is passed, Fair Trials welcomes judicial engagement on this issue. It will take political courage to end the over-reliance on prison and design alternatives to imprisonment. However, the Constitutional Council and Court of Cassation decisions, and the impetus created by COVID-19, present a historical opportunity for the French authorities to reconsider their approach.