This compilation gathers the most important judgments and decisions on prison issues handed down by the European Court of Human Rights and the Court of Justice of the European Union.
By reporting on the main trends in European prison case law, it aims to support legal practitioners in the prison field in their research and litigation, as well as to identify blind spots in European case law to build strategic litigation avenues.
CONTENTS >> EUROPEAN COURT OF HUMAN RIGHTS / COURT OF JUSTICE OF THE EUROPEAN UNION
EUROPEAN COURT OF HUMAN RIGHTS
MORABITO v. ITALY ■ Application no. 4953/22
Extension of a prisoners’ special restrictive prison regime (section 41 bis) despite his long incarceration, advanced aged and cognitive decline (Alzheimer’s disease and vascular neurocognitive disorder), which cast doubt on his ability to maintain meaningful contact with a criminal organisation; extension of this special prison regime insufficiently justified; failure of domestic authorities to address the allegation that limited interactions entailed by the special prison regime could be detrimental for the applicant’s mental state: violation of Article 3 (partly dissenting opinion of Judge Balsamo).
Prisoner with multiple diseases (cognitive decline, prostate enlargement, bilateral inguinal hernia, hypertensive heart disease with episodes of angina, and polyarthritis) maintained in detention; adequate care provided: no violation of Article 3.
IVAN KARPENKO v. UKRAINE (No. 2) ■ Application no. 41036/16
Unrepresented prisoner denied participation via videolink in oral hearings in administrative proceedings concerning the monitoring of his correspondence by the prison administration; domestic courts relied on the alleged absence of relevant legislative provisions rather than assessing whether the nature of the case required the applicant’s presence: violation of Article 6§1 (civil).
Unlawful monitoring of prisoner’s correspondence with domestic courts: violation of Article 8.
TERGEK v. TÜRKİYE ■ Application no. 39631/20
Refusal by the prison authorities to deliver internet printouts posted to a prisoner by his wife; blanket ban on prisoners receiving any printouts or photocopied documents, based solely on their format, regardless of their content, origin or source: no violation of Article 10 (dissenting opinion of Judges Bårdsen, Seibert-Fohr and Lavapuro).
SUMMARY JUDGMENTS
Romania | Refusal to allow prisoners to attend the funerals of close family members (Vidrean and Caloian v. Romania, nos. 39525/22 and 9286/23, 30 April 2025): violation of Article 8.
COURT OF JUSTICE OF THE EUROPEAN UNION
ALCHASTER II [GC] ■ Case C‑743/24 (Request for a preliminary ruling, Ireland)
The concept of “heavier penalty” contained in Article 49 of the Charter of Fundamental Rights does not cover a situation where a parole regime has been made stricter (from a right to automatic entitlement to release on licence once the first half of an imposed sentence has been served, to a right to release once at least two thirds of an imposed sentence has been served, dependent on an assessment conducted by Parole Commissioners).
EUROPEAN COURT OF HUMAN RIGHTS
MORABITO v. ITALY ■ Application no. 4953/22 ■ First Section ■ 10 April 2025
Art 3 (substantive) ■ Continued placement of elderly applicant, convicted of leadership of a Mafia-type criminal organisation, under special restrictive prison regime (section 41 bis regime), despite his progressive cognitive deterioration ■ Domestic authorities’ failure to provide compelling reasons for the extension of this special regime, in view of the applicant’s advanced age and length of time (almost twenty years) spent under this regime ■ Legitimate doubt as to whether the applicant still represented a danger and could maintain meaningful, practical contact with his criminal organisation ■ Domestic authorities’ failure to address allegations that limited human interactions could be detrimental for the applicant’s mental state and to consider lifting or easing some of the restrictions to accommodate his potential needs despite his explicit requests ■ Extended application of the section 41 bis regime, during the period under the Court’s examination, insufficiently justified and entailing a breach of Art 3
Art 3 (substantive) ■ Applicant’s continued detention in prison not in breach of Art 3 in light of the adequate medical treatment provided to him for his multiple diseases
Facts ■ The applicant was convicted of being a leading member of a mafia-type criminal organisation. He was arrested in 2004 and imprisoned under the special prison regime provided for by section 41 bis of Law no. 354 of 26 July 1975 (“the section 41 bis regime”) by order of the Ministry of Justice. That order was extended every two years.
Aged 90, he suffers from several diseases (prostate enlargment, bilateral inguinal hernia, hypertensive heart disease with episodes of angina, and polyarthritis) and has been diagnosed with progressive cognitive deterioration. In 2022, he was diagnosed with Alzheimer’s disease.
The detention regime imposed on the applicant included limited visits by family members and no visits by non-family members; prohibition on using the telephone; limits on receiving money and parcels from outside the prison; prohibition on participating in the elections for prison representatives; a maximum of two hours out of doors per day and in a group of no more than four persons. In addition, his incoming and outgoing correspondence was to be monitored, subject to prior judicial authorisation.
In 2018, 2020 and 2022, the applicant challenged the extension of this regime before the Rome sentence supervision court. He argued that the extension of the special regime did not take into account his deteriorating state of health. Although a court-appointed expert found in 2020 that the applicant’s cognitive deficit significantly affected his mental capacity, the court rejected the applicant’s challenge, arguing that the applicant’s dangerousness and capacity to maintain contact with the criminal organisation remained unchanged.
The applicant’s repeated requests that, in view of his state of health, his detention in prison be replaced with home detention were rejected by Milan sentence supervision judge, who argued that he could appropriately be treated in prison.
The application filed a application before the Court in January and June 2022. He complained under Article 3 about his continued detention in prison despite his state of health, and about his continued placement under the section 41 bis regime despite his progressive cognitive deterioration (which could also be aggravated by this regime). His requests for an interim measure was rejected in February 2022. The Court also mentioned several facts that took place after the lodging of the application before it. In May 2023, following a deterioration of the applicant’s health, his detention in prison was replaced by home detention to be served in a hospital. The applicant returned to prison in June 2023, and the section 41 bis regime was reinstated in November 2023. The applicant requested that his detention be replaced by home detention and his special prison regime be lifted. Domestic proceedings were still ongoing.
Law ■ Admissibility
The Court rejected the Government’s objection to the admission of new factual elements that occurred after the domestic courts’ decisions which had been challenged in the initial complaints submitted to the Court on 7 January and 6 June 2022, namely that he was diagnosed with Alzheimer’s disease (July 2022), the fact that during separate criminal proceedings the applicant appeared to be “completely disoriented” at the hearing (§ 48, April 2022) and the fact that the applicant pointed out the fact that he had no caregiver in a new application for the replacement of his prison detention with home detention (May 2022).
However, the Court considered that the facts having taken place after the applicant’s hospitalisation (May-June 2023) “concern new sets of facts, giving rise to substantially new complaints” (§ 87). The Court considered that during and after his hospitalisation the applicant benefited from a “significant change in [his] detention regime, entailing an interruption of continuity” (§ 87).
Law ■ Article 3 ■ Complaint concerning the applicant’s continued detention and the medical treatment provided to him
General principles: Rooman v. Belgium [GC], no. 18052/11 , §§ 144-148, 30 January 2019; Tarricone v. Italy, no. 4312/13, §§ 71-80, 8 February 2024; Potoroc v. Romania, no. 37772/17, § 63, 2 June 2020; Cosovan v. Moldova, no. 13472/18, § 78, 22 March 2022
The Court stated that it was undisputed that the applicant suffered from multiple chronic diseases, but observed that “hese diseases did not show signs of significant aggravation, with the exception of the hernia […] and of the applicant’s progressive cognitive deterioration” (§ 102). The impact of the prison regime the applicant was subjected on his cognitive health was examined separately (see below).
With regard to the quality of care provided, the Court observed that the applicant had been frequently examined by prison doctors and specialists, that delays in operating in the applicant’s hernia were a consequence of repeated refusals of the applicants to have the operation, and that multiple medical assessment stated that the applicant could manage his personal hygiene without assistance.
The Court dismissed criticisms of the quality of care provided, as set out in a medical report drafted by a court-appointed expert in proceedings concerning the applicant’s prison regime, as unfounded based on evidence provided by the Government.
With regard to the applicant’s continued detention in prison, although the Court acknowledged that the applicant was suffering from multiple diseases, it considered that “these were neither terminal nor at such an advanced stage as to render the detention inhuman” (§ 113, quoting a contrario Cosovan, § 88).
The Court was also satisfied with the way domestic courts examined the applicant’s requests to have his detention in prison replaced with home detention, noting that they had “relied on multiple up-to-date medical reports compiled by the prison medical services, which showed univocally that the applicant could be, and was, adequately treated in prison” (§ 114). Although the courts have not commissioned expert reports, they have relied on the medical expert report prepared in the frame of proceedings concerning the applicant prison regime. The Court argued that this report, “while criticising some aspects of the applicant’s treatment, at no point suggested that he could not be treated in prison or that his condition had deteriorated so far as to require his release” (idem).
Conclusion ■ No violation of Article 3.
Law ■ Article 3 ■ Complaint concerning the applicant’s continued placement under the section 41 bis regime
General principles: concerning high security prison regime: Epure v. Romania, no. 73731/17, § 73, 11 May 2021; Horych v. Poland, no. 13621/08, § 88, 17 April 2012; concerning specifically removal from association with others: Schmidt and Šmigol v. Estonia, nos. 3501/20 and 2 others, § 123, 28 November 2023; Bamouhammad v. Belgium, no. 47687/13, § 135, 17 November 2015; Rzakhanov v. Azerbaijan, no. 4242/07, § 64, 4 July 2013; Rohde v. Denmark, no. 69332/01, § 93, 21 July 2005; concerning the obligation to carry out regular monitoring of the prisoner’s physical and mental condition: Fenech v. Malta, no. 19090/20, § 66, 1 March 2022; Öcalan v. Turkey (no. 2), nos. 24069/03 and 3 others, §§ 105-06, 18 March 2014; Ramirez Sanchez v. France [GC], no. 59450/00, § 139, 4 July 2006; on the potential damaging effects of social isolation: Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, § 204, 8 July 2014; Khider v. France, no. 39364/05, §§ 119-22, 9 July 2009; Lorsé and Others v. the Netherlands, no. 52750/99, §§ 68-69, 4 February 2003; concerning the section 41bis regime: Enea v. Italy [GC], no. 74912/01, §§ 63-67, 17 September 2009; Paolello v. Italy (dec.), no. 37648/02, §§ 26-29, 24 September 2015; Argenti v. Italy, no. 56317/00, §§ 19-23, 10 November 2005; on the obligation to provide sufficient and relevant reasons for the applicant or extension of a security regime: Provenzano, no. 55080/13, § 152‑53, 25 October 2018; Csüllög v. Hungary, no. 30042/08, § 36-37, 7 June 2011.
The Court noted that, aged 88 at the time his application was filed, the applicant was “older than the applicants in all the previous section 41 bis cases examined by [it], and had been subjected to that special regime for longer than most of them” (§ 135).
The Court also noted that it was undisputed that the applicant had been suffering progressive cognitive decline for a few years (at least since 2014), which “prompt[ed] some legitimate doubt as to whether the applicant still represents a danger and as to whether he could maintain any meaningful, practical contact with his criminal organisation” as argued by the authorities in their decision to extended the applicant’s restrictive prison regime.
The Court observed in particular that the medical diagnosis of cognitive impairment (2014, 2017) were not taken into account in decisions to extend the prison regime in 2018 and 2020. What is more, although a court-appointed medical expert concluded that the applicant’s mental capacity had been significantly altered, “the sentence supervision court chose not to rely on the results of that expert report but to conclude instead that […] the expert had overestimated the applicant’s cognitive deterioration” and maintained that the applicant could still resume contact with is criminal organisation (§ 139). The sentence supervision court relied on notes from prison doctors saying that the applicant could perform daily tasks, and on criticisms against the authorities expressed by the applicant during private conversations with his family. The Court considered that these facts do not substantiate the authorities’ allegation that the applicant could resume contact with the criminal organisation and contribute in any meaningful way in its activities.
In November 2022, the domestic courts rejected the applicant’s application against the extension of his prison regime, despite clear signs of cognitive deterioration. The applicant had been diagnosed with Alzheimer’s disease in July 2022 and was acquitted of crimes committed in 2020 in November 2022, as he was found to lack the capacity to stand trial.
In view of the above, the Court stated it failed to see “how a person suffering from an undisputed cognitive decline – and even diagnosed with Alzheimer’s disease – and who was incapable of understanding his own conduct or following a court hearing could at the same time maintain sufficient capacity to keep or resume – at such an advanced age, after almost twenty years spent under a particularly restrictive regime – meaningful contact with a criminal organisation” (§ 143) and stressed that the authorities should have provided “more detailed reasoning, based on thorough specialist examination, to reach such a conclusion” (idem).
The Court therefore found that the extension of the applicant’s prison regime had not been sufficiently justified.
While noting that it is “possible that the restrictions on socialisation may have had an impact” on the applicant’s cognitive decline, the Court declined to “speculate as to whether the special regime has indeed aggravated” it (§ 144). In any event, the Court noted that this point was not addressed by the authorities, and that despite an explicit request by the applicant, the authorities did not consider lifting or easing some of the restrictions, or accommodating his potential needs.
Conclusion ■ Violation of Article 3.
Article 41 ■ The finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.
Partly concurring, partly dissenting opinion ■ Judge Balsamo (ad hoc judge, appointed following the withdrawal of Judge Sabato)
Judge Balsamo approved the Court’s “acknowledgement of the purely preventive and security – rather than punitive – purposes of [the section 41 bis] special prison regime, aimed at severing contact between detainees and their criminal network” (§ 1), but disagreed with the conclusion that there had been a breach of Article 3, due to a lack of justification of the extension of the applicant’s prison regime in spite of clear indications of his cognitive deterioration.
Judge Balsamo argued that the domestic courts have concluded that “the possibility that the applicant could convey criminally relevant messages to the criminal organisation in question could not by any means be ruled out” (§ 15) following on a thorough assessment of his situation based on “ample medical documentation” (idem). Judge Balsamo was not convinced by the fact that the applicant had been acquitted in 2022 due to his inability to stand trial. He argued that this decision “did not in any way exclude the persistent danger he posed to public and individual safety on account of his prominent role in a mafia-type association of the utmost importance” (§ 25). He did not mention the applicant’s diagnosis of Alzheimer’s disease.
Judge Balsamo considered that in the present case “the Court may have substituted its own assessment of the facts for that of the national courts” (§ 26), and he regretted that the specific nature of Mafia-type organised crime had not been taken sufficiently into account.
IVAN KARPENKO v. UKRAINE (No. 2) ■ Application no. 41036/16 ■ Fifth Section ■ 24 April 2025
Art 6 § 1 (civil) ■ Fair hearing ■ Adversarial proceedings ■ Unrepresented prisoner not allowed to participate by videolink in oral hearings in administrative proceedings on the alleged monitoring of his correspondence in prison due to the supposed absence of relevant legislative rules at the time ■ Domestic courts’ failure to properly assess whether the nature of the case necessitated the applicant’s presence, possibly via videolink, focussing instead on perceived deficiencies in the domestic law ■ Applicant deprived of the opportunity to present his case effectively and respond to the submissions of the prison administration which was present at the first-instance hearing ■ Breach of the principle of equality of arms
Art 8 ■ Monitoring of prisoners’ correspondence with domestic courts
Facts ■ The applicant, a prisoner serving a life sentence, complained about the opening and review by the prison administration of his correspondence with the Higher Administrative Court, concerning a previous dispute with the prison about his correspondence, which he gave in a sealed envelope to the prison staff for mailing.
In September 2014, the applicant lodged an administrative complaint against the prison administration’s monitoring of his correspondence. He requested the competent administrative court to examine his case via videolink, instead of participating physically.
The first-instance administrative court, rejected the applicant’s request, on the ground that “at the relevant time, the relevant provision of the Code of Administrative Justice […] did not provide for participation in an administrative court hearing via videolink from a prison, and that the provisions of the Code of Criminal Procedure allowing for such participation could not be applied by analogy” (§ 11). A public and oral hearing took place, with the participation of representatives of the prison administration. The court of appeal upheld the first-instance court’s judgment and argued that the applicant had other means of effective participation (through a representative, written submissions, and through asking the court to collect any evidence if that evidence could not be provided by the party).
Both courts rejected the applicant’s claim. They observed that the prison administration registered the correspondence given by the applicant as “correspondence” and not as a “sealed envelope”. They held that although prisoners’ correspondence with courts are exempt from monitoring, it had been the applicant himself who had failed to submit his correspondence in a sealed envelope. The Higher Administrative Court upheld those decisions.
Law ■ Article 6 § 1
General principles: Yevdokimov and Others v. Russia, nos. 27236/05 and 10 others, §§ 23-25, 33, 35, 38, 42, 16 February 2016.
The Court observed that the first-instance court held an oral and public hearing, in which representatives of the prison administration took part and presented information. It also noted that, as explicitly mentioned by the applicant at the time he filed a request for participating via videolink, he had no means to retain a lawyer to represent him. The Court also noted that it was undisputed that the applicant had no access to legal aid.
The Court recalled its previous case-law, in which it had held that if the claim “is based largely on the detainee’s personal experience, his or her oral submissions to the court would be an important part of his or her presentation of the case and virtually the only way to ensure adversarial proceedings” (§ 34, referring to Yevdokimov, § 42). In this respect, the Court considered that the domestic court, when rejecting the applicant’s request to participate via videolink, “did not consider whether the nature of the dispute necessitated the applicant’s attendance to ensure the overall fairness of the proceedings” (§ 35) and simply relied on the lack of a legal provision foreseeing such participation.
The Court noted that this legal interpretation by the domestic courts seems to contradict a ruling from the Constitutional Court, which declared in 2012 that “incarcerated individuals [have] equal rights with other individuals to participation in the examination of their cases in courts of all jurisdictions, specialisations and levels” (§ 36). In any event, the Court recalled that “a supposed lacuna in the domestic law cannot be a justification for failing to give full force to the Convention standards” (§ 37, refering to Yevdokimov and Others, § 31).
In view of the nature of the case (a factual dispute between the applicant and the prison administration over the circumstances in which his correspondence to the HAC had been handed over to them), the Court considered that the applicant’s personal experience of the situation was important.
Against this background, the Court concluded that the domestic courts deprived the applicant of the opportunity to present his case effectively. By relying only on perceived deficiencies in the domestic law, they failed to “to properly assess the nature of the case brought by the applicant with a view to deciding whether his presence, possibly via videolink, was indispensable” (§ 39).
The Court also noted that there had been a breach of the principle of equality of arms since the prison administration was present at the hearing before the first-instance court, while the applicant had no opportunity to respond to the prison administration’s oral submissions.
Conclusion ■ Violation of article 6 § 1 (civil)
Law ■ Article 8
The Court argued that it does not need to resolve the factual dispute whether the applicant handed over the correspondence sealed or unsealed to examine the complaint under Article 8.
It noted that “it was the responsibility of the prison administration to ensure that the relevant domestic regulations were respected by its officials and, if needed, by the applicant” (§ 49). If the applicant had submitted an unsealed envelope, the Court noted that “no explanation has been provided […] as to why the administration did not return the unsealed correspondence to the applicant rather than proceeding to record its contents in the correspondence register” (idem).
The Court further noted that the prison administration sent the correspondence to the HAC together with a cover letter containing information additional to that contained in the register (appeal number, number of pages), which suggests the administration had reviewed the content of the correspondence.
The Court recalled it had already found a violation of Article 8 in similar cases found no reason to reach a different conclusion (see Glinov v. Ukraine, no. 13693/05, § 54, 19 November 2009; Trosin v. Ukraine, no. 39758/05, §§ 55-56, 23 February 2012; and also compare, for illustrative purposes, Bosyy v. Ukraine [Committee], no. 13124/08, §§ 49-54, 22 November 2018; Burgazly v. Ukraine [Committee], no. 41920/09, §§ 64‑69, 21 March 2019; and Vasilenko v. Ukraine [Committee], no. 70777/12, §§ 8-10, 13 January 2022).
Conclusion ■ Violation of Article 8.
Article 41 ■ The Court considered that the finding of a violation constitutes sufficient just satisfaction for non-pecuniary damage sustained by the applicant; EUR 800 in respect of costs and expenses.
TERGEK v. TÜRKİYE ■ Application no. 39631/20 ■ Second Section ■ 29 April 2025
Art 10 ■ Blanket ban on prisoners’ receiving any internet printouts or photocopied documents, irrespective their content, origin, or source ■ Ban applying indiscriminately to all prisoners ■ Measure not explicitly regulated by domestic law ■ Court relied on a ruling by the the Constitutional Court ■ Reviewing printed or photocopied documents in addition to periodicals and non-periodicals would impose an unreasonable burden on prison administrations and the domestic courts ■ Various means available to prisoners for obtaining publications in accordance with the relevant domestic law ■ Reasonable for national authorities to regulate the manner in which prisoners may obtain photocopied or printed documents in order to ensure efficient functioning of all prison services ■ Margin of appreciation not exceeded ■ Dissenting opinion
Facts ■ The applicant was detained in Kocaeli T-Type Prison following his conviction for membership of an organisation designated by the authorities as the “Fetullahist Terror Organisation/Parallel State Structure” (Fetullahçı Terör Örgütü / Paralel Devlet Yapılanması, hereinafter referred to as “the FETÖ/PDY”).
In October 2018, the prison administration reviewed a letter sent to the applicant by his sister, containing 31 pages of documents printed from the internet. The prison’s Disciplinary Board decided to withhold the letter, “on the grounds that the letter’s enclosures contained statements which could potentially pose a threat to prison security, that it was unclear who had published the information or for what purpose, and that the information included phrases which could facilitate communication within the FETÖ/PDY organisation” (§ 7).
The applicant lodged an objection against this decision. He explained that the printed documents included a description of various physiotherapy exercises to assist him with the rehabilitation of his injured ankle (he specified that his sister is a physiotherapist), as well as documents relating to a distance-learning course he was taking that were needed for him to prepare for examinations.
The domestic court upheld the applicant’s objection. The applicant received the letter and its enclosure in October 2019.
In December 2018, the applicant received a second letter sent by his wife, containing 61 pages of documents printed from the internet, a one‑page handwritten note and four pictures.
Mentioning a 2016 decision of the Administration and Monitoring Board concerning the potential risks associated with allowing internet printouts to be handed over to prisoners, the prison’s Disciplinary Board decided to withhold the 61 pages printed from the internet. The Disciplinary Board’s decision was not based on an examination of the content of these pages, but on the fact that they were printed from the internet.
The applicant lodged an objection against this decision, putting forward the same arguments as in his objection against the decision to withhold the first letter mentioned (ie that the documents were a mix of physiotherapy exercises and materials for his distance-learning course). The domestic courts rejected the applicant’s objection. In particular, the enforcement judge argued that “the internet printouts could not be classified as “books” or “correspondence” under the relevant legislation as a result of their unknown origin and their susceptibility to external interference” (§ 13). The Constitutional Court dismissed the applicant’s complaint as manifestly ill-founded, referring to a leading judgment on this matter which was delivered in April 2018 (§ 23, on this judgment see below).
The applicant complained about the delayed delivery to him of the internet printouts enclosed with the first letter sent by his sister, and the withholding of other printed documents enclosed with the second letter sent to him by his wife.
Law ■ Admissibility
The Court accepted the Government’s objection that the applicant lacked victim status, in respect of the first letter, since the domestic authorities explicitly acknowledged that the withoolding of the printed documents constituted a violation of the applicant’s Convention rights, and since the applicant was handed down the said documents following this judgment. The Court rejected the Government’s objection with regard to the second letter. While the Government argued that the printed documents in the first and second letter were identical, the Court observed that the second set of documents was twice as long as the first one (61 pages compared to 31 pages), that it had not been provided with a copy of the printed documents, and that the Disciplinary Board did not take its decision on the basis of the contents of the documents but of their nature.
The Court also rejected the Government’s objection that the applicant had not suffered a significant disadvantage since he had access to newspapers, books and other published material. The Court found this argument irrelevant since the case concerns specific documents the applicant was denied access to, not general access to receive information and ideas in prison.
Lastly, the Court rejected the Government’s argument that the applicant was manifestly ill-founded. It noted that the case concerns “a novel issue regarding the right to receive and impart ideas in prison – specifically, the withholding of printed documents without examining their content, an issue which requires an examination on the merits” (§ 41)
Law ■ Article 10
General principles: on the right to freedom of expression:Yankov v. Bulgaria, no. 39084/97, §§ 126-45, 11 December 2003; Tapkan and Others v. Turkey, no. 66400/01, § 68, 20 September 2007; on the right to receive information or ideas: Mesut Yurtsever and Others v. Türkiye, nos. 14946/08 and 11 others, § 101, 20 January 2015; Mehmet Çiftci v. Türkiye, no. 53208/19, § 32, 16 November 2021; Osman and Altay v. Türkiye, nos. 23782/20 and 40731/20, § 40, 18 July 2023.
The Court considered that the interference with the applicant’s rights complained of had a legal basis and pursued legitimate aims (“namely the protection of national security, the prevention of disorder and the prevention of crime”, § 56).
Regarding the necessity of the measure, the Court noted that “the receipt of photocopied or printed documents in prison was not explicitly regulated by domestic law” (§ 63) and based its analysis on a ruling of the Turkish Constitutional Court on a similar issue. In April 2018, the Constitutional Court established the principle that the domestic legal provisions governing access to publications cover only “periodicals and non-periodicals” and do not extend to photocopied documents since “applying the same inspection criteria to photocopied documents as to periodicals and non-periodicals would impose an unreasonable burden on prison administrations and the domestic courts” (§ 62).
The Court endorsed this analysis, arguing that imposing a review of printed or photocopied documents “could indeed overwhelm prison staff, impede their duties, and place an excessive burden on the judiciary, including the Constitutional Court” (§ 63). The Court also noted that, unlike officially published books and periodicals “which typically undergo thorough reviews and regulatory controls prior to release to ensure compliance with legal standard” (idem), printouts and photocopies “lack such pre-publication scrutiny, thereby presenting specific risks to the security and order of the prison environment, including the heightened risk of infiltration of certain external communications within large number of printouts” (idem).
The Court also noted that prisoners have “various means available […] for obtaining publications in accordance with the relevant domestic law, namely obtaining publications upon request, internal access to publications issued by official authorities and certain organisations, books kept in prison libraries and school textbooks, and the possibility of receiving books as gifts on specific occasions” (§ 64).
The Court concluded that the regulation of the manner in which prisoners may obtain photocopied or printed documents falls within the authorities’ margin of appreciation “in order to ensure the efficient functioning of all prison services” (§ 66). It added in this respect that the Constitutional Court had “carried out a detailed and carefully balanced assessment of the competing interests involved and did not exceed its margin of appreciation” (idem) and saw no reason to substitute its own opinion in place of that of the Constitutional Court.
In the light of the above, the Court found that it cannot be considered that the applicant’s right to freedom to receive information and ideas was disproportionately restricted by his inability to access the printed material sent to him by post.
Conclusion ■ No violation of Article 10 (four votes to three).
Partly dissenting Opinion ■ Judges Bårdsen, Seibert-Fohr and Lavapuro
Judges Bårdsen, Seibert-Fohr and Lavapuro disagreed with the majority’s analysis that a “blanket ban on prisoners’ receiving any internet printouts or photocopied documents, based solely on their format” (§ 1 of the dissenting opinion) did not violate Article 10 of the Convention and did not contradict the Court’s case law.
Regarding the legality of the measure, the judges regretted that the Court’s judgment “starts from the assumption that the interference was prescribed by law” (§ 5) although the main legal provision regulating access to publication by prisoners was considered inapplicable by the Turkish Constitutional Court, which did not refer to any alternative legal basis. Furthermore, they noted that under domestic law, prisoners “may only receive information to the extent that this is expressly permitted by domestic legislation” (§ 6), which is “the very opposite point of departure from that of the Convention, namely, that prisoners start out with the right to receive any information and that any limitation must be prescribed by law” (idem).
The judges also expressed doubts as to whether the measure was necessary to achieve the aforementioned legitimate aims. They noted that the ban on information received via photocopies or printouts was “based solely on its format and irrespective of its content, origin, or source” that it applied indiscriminately to all prisoners (and was “not limited to those convicted of certain crimes or to prisoners posing a particular security risk”, idem), that there were “no exemptions, for example, for material relevant to the prisoner’s education, health, or rehabilitation”, and that no distinction was made “between photocopies from physical originals like books and magazines, on the one hand, and printouts from electronic sources such as the internet, on the other” (§ 8) Based on this information, they concluded that “the ban blocked prisoners’ access to any information available on the internet unless they were given access to the internet itself” (idem).
Furthermore, the judges considered that neither the Turkish legislature nor the Constitutional Court had “carefully weighed up the rights and interests at stake in relation to the blanket ban in question” (§ 11). In particular, they argued that the Constitutional Court “relied solely on an unreasonable burden that might otherwise be placed on the prison administration and the lower courts, without any attempt to weigh that interest against the right of prisoners to receive information” – thus disagreeing with the majority’s analysis that the Constitutional Court’s review was “a detailed and carefully balanced assessment of the competing interests involved” (§ 15, quoting § 66 of the judgment).
The judges therefore concluded that the respondent Government have not “convincingly demonstrated that the blanket ban on prisoners’ access to information via photocopies and printouts that was applied in the applicant’s case was introduced on the basis of a careful weighing-up of the rights and interests at stake” (§ 17) and was necessary in a democratic society. They also stated that the majority’s conclusion that there had been no violation of Article 10 in this case “may have serious implications for prisoners’ rights more generally throughout Europe” (§ 19). They noted that the majority’s reasoning, which is “in striking resemblance to the joint dissenting opinion in the Osman and Altay case” filed by Judges Yüksel and Derenčinović, “substantially diverges from established case-law” and recalled that “[s]uch important changes to the Court’s jurisprudence go beyond the remit of a Chamber formation” (idem).
COURT OF JUSTICE OF THE EUROPEAN UNION
ALCHASTER II [GC] ■ Case C‑743/24 (Request for a preliminary ruling, Ireland) ■ 3 April 2025
Art 49(1) CFR ■ Principle of legality of criminal offences and penalties ■ Reference for a preliminary ruling ■ Trade and Cooperation Agreement between the European Union and the United Kingdom ■ Judicial cooperation in criminal matters ■ Arrest warrant ■ Adverse amendment to the parole system in the issuing State
Facts ■ The case concerned the surrender of MA by Ireland to the United Kingdom (UK), following four arrest warrants issued by UK judges (Northern Ireland) in respect of offences involving terrorism, alleged to have been committed between 18 and 20 July 2020. Cooperation in judicial matters between the UK and the European Union (EU) is governed by the Trade and Cooperation Agreement, entered into force in May 2021.
MA submitted before the Supreme Court of Ireland that, should he be surrendered to the UK and sentenced to a determinate term of imprisonment, his right to conditional release in the UK would be governed by legislation adopted after the alleged commission of the offences.
According to the new parole regime in force as of 30 April 2021 (which applies to offences committed before that date), persons convicted to a determinate custodial sentence for a terrorist offence may be released on parole after having served two thirds of the “appropriate custodial term” determined by the judge, provided that the Parole Commissioners are satisfied that their continued detention is not necessary for the protection of society. In any event, those persons are automatically eligible for licence one year before the end of their sentence.
Prior to April 2021, persons sentenced to a fixed term of imprisonment were automatically released on parole after a “custodial period” that could not exceed half of the sentence imposed.
The referring court asked whether those changes “can still be regarded as relating solely to the execution of the penalties or whether they must, on the contrary, be regarded as retroactively altering the actual scope of the penalty incurred by MA in the event of his surrender to the United Kingdom” (§ 19), resulting in a “heavier penalty” than the penalty applicable at the time of the alleged offences, thereby constituting a breach of Article 49(1) of the Charter.
Law ■ Article 49(1) of the Charter of Fundamental Rights (CFR)
General principles: ECtHR, Del Río Prada v. Spain, no. 42750/09, § 83, 21 October 2013; CJEU, Alchaster, C‑202/24, § 94, 29 July 2024.
The Court reiterated that Article 49 CFR “contains, at the very least, the same guarantees as those provided for in Article 7 ECHR […] as a minimum threshold of protection”. It recalled that the ECtHR distinguishes “between a measure that constitutes in substance a ‘penalty’ and a measure that concerns the ‘execution’ or ‘enforcement’ of the penalty” (§ 25).
As a rule, a measure that relate to the remission of a sentence or a change in the regime for release on licence do not form part of the penalty, except if “it retroactively alters the actual scope of the penalty provided for on the date on which the offence at issue was allegedly committed” or if it “essentially repeals the possibility of release on licence or if it forms part of a series of measures which have the effect of increasing the intrinsic seriousness of the sentence initially provided for” (§ 29, with reference to the ECtHR case Kupinskyy v. Ukraine, no. 5084/18, §§ 56 and 64, 10 November 2022, which concerned the retroactive application of a measure consisting in converting a reducible life sentence into an irreducible life sentence).
The Court observed that the present case does not merely concern an extension of the eligibility threshold for release (from half to two-thirds of the sentence to be served), but a change in nature in the release system, composed of two steps: one composed of “an assessment of the dangerousness of the sentenced person by a specialised authority” after two-thirds of the sentence imposed have been served (§ 31); and a second, consisting of an automatic eligibility for licence one year before the end of that sentence.
Although the Court noted that this change can lead “to a hardening of the detention situation” because it “creates uncertainty as to when the release on licence of a sentenced person will occur”, it “does not necessarily have to be regarded as entailing the imposition of a heavier penalty” (§ 32) as long as it does not “repeal the possibility of such release and do not lead to an increase in the intrinsic seriousness of the penalty provided for on the date of the alleged commission of the offences at issue” (§ 35).
First, the Court noted that the change preserves the possibility of ordering the release on licence of the sentenced person. The Court stressed that the materials submitted to it do not indicate that “the exercise of the Parole Commissioners’ powers concerning release on licence could lead, in practice, to the repeal of the possibility of such release on the basis that such exercise was not subject to adequate procedural safeguards, including as regards the time limit for processing applications for release on licence” (§ 38).
Second, the change does not affect the maximum duration of the determinate prison sentence applicable, which is to be understood as “the maximum period in which the sentenced person could, ultimately, be placed in custody” (§ 42). The Court argued that since under both release regimes, a person having been release could be recalled to prison “within the limits of the period of imprisonment fixed at the time of his or her sentencing […] [n]either of those regimes […] provides that person with a guarantee that he or she will remain free for a predetermined part of the prison sentence to be imposed by the criminal court” (§ 43).
Furthermore, the Court followed Advocate General (AG) Spielmann’s opinion (see here) that using the criterion of the dangerousness of the sentenced person in release proceedings constitutes “a standard criterion in prison policies”, is of a different nature than the assessment carried out when the sentence was handed down, and is therefore “linked to the execution of the penalty” (§ 44).
As regards the competences of the Parole commissioners tasked with assessing the dangerousness of the person at a given time, the Court observed that the materials submitted to it do not indicate that they “have a purely discretionary power that goes beyond the discretion relating to [… this] assessment” and that they could “rely on criminal policy considerations independent of that assessment” (§ 45).
Lastly, the Court considered that the fact that the changes discussed have only concerned those convicted of terrorist offences (which, as argued by AG Spielmann, “could be construed as an indication that, in reality, the intention was to raise the penalty for such offences”, see § 94 of AG Opinion), have “no implications in terms of the effects of those changes on the objective situation of those persons” (§ 46).
Conclusion ■ The second sentence of Article 49(1) of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the application, to a person who may be sentenced to a determinate term of imprisonment, of a regime under which that person must serve at least two thirds of a fixed custodial period before being eligible for release on licence, such release is conditional upon a specialised authority finding that the continued imprisonment of that person is no longer necessary for the protection of society and that person is necessarily eligible for release on licence one year before the end of the sentence imposed, does not constitute the imposition of a heavier penalty, when, under the rules applicable on the date of the alleged commission of the offences at issue, he or she should automatically have been eligible for release on licence after having served half of that sentence.
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