Legal Resources


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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.

EL-ASMAR v. DENMARK Application no. 27753/19

Ineffective investigation into use of pepper spray against an aggressive prisoner in an observation cell without prior warning and without use made strictly necessary by his conduct: violation of Article 3 (substantive and procedural).

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TINGAROV AND OTHERS v. BULGARIA Application no. 42286/21

Statutory blanket ban on voting by prisoners: violation of Article 3 of Protocol No. 1dismissal of the applicants’ claim for just satisfaction (partly dissenting opinion of Judge Serghides).

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TAKÓ AND VISZTNÉ ZÁMBÓ v. HUNGARY Applications nos. 82939/17 and 1 other

Physical separation with a glass partition during visits by relatives to “high-security prisoners”: violation of Article 8.

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K.P. v. POLAND Application no. 52641/16

Restrictions on family visits: struck out (unilateral declaration); excessive length of applicant’s pre-trial detention and lack of sufficient grounds to justify its entire duration: violation of Article 5 § 3.
Investigation into abuse of power by a prison officer in the context of a relationship of dependence, as a consequence of which the applicant became pregnant in detention: inadmissible (loss of victim status).

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STOTT v. THE UNITED KINGDOM Application no. 26104/19

Difference in treatment in early release eligibility between prisoners serving an extended determinate prison sentence, vis-à-vis standard determinate sentence prisoners and discretionary life sentence prisoners: no violation of Article 14, taken in conjunction with Article 5.

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EL-ASMAR v. DENMARK Applications nos. 27753/19 Fourth Section  3 October 2023

Art 3 (substantive and procedural) ■ Inhuman or degrading treatment ■ Ineffective investigation into deployment of pepper spray against an aggressive prisoner in an observation cell without prior warning ■ Failure to demonstrate deployment of pepper spray made strictly necessary by applicant’s conduct

Facts Pepper spray was used by two prison guards on the applicant, a prisoner on remand, while he was held in an observation cell. Following an investigation into the applicant’s complaint, the Department of Prisons and Probation found its use justified and the police decided not to initiate criminal proceedings against the prison guards. The applicant appealed unsuccessfully.

Law Article 3

(a) The procedural limb

No issue arose as to the independence of the investigation. Although the investigation had taken too long to start following the applicant’s reporting of the incident and could not thus be considered “prompt”, that initial delay in the circumstances could not of itself lead to a finding that the investigation had been ineffective. In particular, the identity of the relevant prison guards had been recorded and the description of the facts in the prison journal had corresponded to their subsequent descriptions.

That being said, the subject of the investigation had been rather narrow as it had been aimed at deciding whether to bring charges against the relevant prison guards and at addressing the applicant’s complaints about the investigation without an assessment of whether the use of force, in the form of deploying pepper spray against the applicant, had been “made strictly necessary by his conduct”. In particular, the Court found as follows:

Firstly, although the prosecution authorities had noted that the reports of events had been contradictory, it did not appear that they had made an assessment of the incident in the context of the surrounding circumstances, including the applicant’s prior behaviour and threats or the prison authorities’ ability to respond to prior attacks without the need to deploy pepper spray. Notably, they had not examined in any detail the reason for entering the observation cell, the preparation (if any) of the action, or whether the legal safeguards for the use of pepper spray laid down in domestic law had been complied with.

Secondly, there had been inconsistencies in the descriptions of the events and the timing set out in the prison journals. However, the prosecution authorities had made no adequate attempt to clarify the reasons for which the guards had entered the observation cell and had thus been unable to establish the necessity and urgency of the action taken.

Thirdly, as in the case of Tali v. Estonia, the prison authorities and the prison guards that had been involved in the incident had been well aware that the applicant was a violent and aggressive prisoner, who had made daily threats against them and had been placed in observation and security cells several times. The applicant had engaged in a physical attack against them the day before and had also been aggressive the same day of the incident, some 20 minutes before the guards had entered the cell. Nonetheless, there was no indication that the investigation authorities had examined whether the guards could and should have foreseen that their entering the cell could have involved a risk of the applicant turning violent towards them or whether that risk could have been averted by making specific preparations before entering. An examination of the preparation of the operation could have shed light on whether the applicant could have been brought under control without the need to deploy pepper spray.

Fourthly, it would have been relevant to question more thoroughly why the prison guards could not have forewarned the applicant, before entering the observation cell, that pepper spray would be used against him if he did not obey orders, or why, they had not entered his cell with the pepper spray visibly drawn ready to be used as required by domestic law. In that context, it might also have been appropriate to examine whether there had been sufficient “assistance” – to be offered to the prisoner after deployment of the pepper spray – available, and whether provision could or should have been made for specific evidence about the operation to be gathered.

Lastly, it appeared that the prosecution authorities had assumed that the remaining legal safeguards for the use of pepper spray provided for under domestic law had been complied with. In that connection, the Court reiterated the concern expressed by international bodies about pepper spray being used by law enforcement in confined spaces.

Moreover, in light of the recommendations made by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in its 2019 report to the Danish Government concerning the use of pepper spray in Danish prisons, the investigation should have carefully addressed whether the procedural safeguards laid down in domestic law had been complied with, as those would be elements to be taken into account in assessing whether the use of pepper spray in the present case had amounted to ill-treatment contrary to Article 3.

In that connection, while the investigation authorities had found it established that the prison guards had offered the applicant water and called the prison doctor immediately after the incident and again one hour later, it was not clear whether they had found it established, that he had been offered the necessary relief for symptoms caused by the use of pepper spray as required by domestic law or considered the appropriateness of the doctor’s response that “if the inmate had only been subjected to pepper spray, there was no need to attend to the inmate”. In addition, although it followed from the prison journals that the use of pepper spray had been registered and described and the applicant had been informed that he could appeal against the decision on its use, there was no information as to whether the incident had also been recorded in a dedicated register and reported to the Prison and Probation Service.

In the light of the foregoing, the respondent State’s authorities had failed to carry out an effective investigation into the applicant’s allegations of ill-treatment with a view to establishing whether the deployment of pepper spray had been made strictly necessary by his conduct.

(b) The substantive limb

The Court fully acknowledged the difficulties that States might encounter in maintaining order and discipline in penal institutions, particularly in cases of unruly behaviour by dangerous prisoners.

In the present case, the prosecution authorities’ investigation, however, had not been aimed at deciding whether the use of force had been made strictly necessary by the applicant’s conduct, which was the Convention standard for determining such a matter, the burden of proof being on the Government. Moreover, due to the investigative flaws identified by the Court, several important questions, which could and should have been addressed by the relevant domestic authorities in order to show that the use of pepper spray in this case had been made strictly necessary by the applicant’s conduct had remained unanswered. In particular, they had failed to examine whether, despite their prior knowledge of the applicant’s repeated threats and physical attacks on the prison guards and the passage of some 20 minutes between the applicant’s conduct being first recorded and the prison guards entering his cell, their actions and the use of pepper spray without prior warning, had been strictly necessary, and whether in those circumstances, the operation had been prepared adequately and in compliance with domestic law and the CPT’s recommendations

Having regard to the above, and in particular the lack of any prior warning, the Court could not but conclude that the Government had failed to demonstrate that the use of force had been made strictly necessary by the applicant’s conduct.

Conclusion Violation both on procedural and substantive limb (unanimously).

Article 41 ■ 10 000 EUR for non-pecuniary damage. 10 000 EUR for cost and expenses.

(See also Tali v. Estonia66393/10, 13 February 2014, Legal Summary)

© Council of Europe/European Court of Human Rights

TINGAROV AND OTHERS v. BULGARIA  Application no. 42286/21 Third Section  10 October 2023

Article 3 of Protocol No. 1 ■ Statutory blanket ban on voting by prisoners

Facts The applicants complained they were prevented from taking part in the elections to the Bulgarian Parliament held in 2021, as a result of the statutory blanket ban on voting by prisoners provided for in Bulgarian law.

Law Article 3 of Protocol No. 1

The Court referred to its previous case law, in which it found the statutory blanket ban on voting by prisoners in Bulgaria to be in breach of Article 3 of Protocol No. 1 (see Kulinski and Sabev v. Bulgaria, no. 63849/09, 2016). Noting that no legal changes had been brought since its first judgment on this matter, the Court found no reason to depart from this conclusion.

The Court also rejected the Government’s objection that five out of eight applicants were serving long-term sentences and “would have been barred on that basis from voting, even if Parliament had amended the legislation to make it compliant with the requirements of the Convention” (para. 14). Not only that the seriousness of the offences committed was not raised by the Government during domestic proceedings, but the Court also stressed “it would not in any event be appropriate [it] to assume that, if Parliament were to amend the impugned legal provisions, restrictions on the right to vote would still apply to prisoners sentenced for serious offences, or to conclude that such an amendment would necessarily be compatible with Article 3 of Protocol No. 1” (para. 16).

Conclusion Violation of Article 3 of Protocol No. 1

Article 41 The Court concluded, by six votes to one, that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants and dismissed the remainder of the applicants’ claim for just satisfaction.

In his partly dissenting opinion, Judge Serghides criticised this decision. According to him, the refusal to award the applicants any amount in respect of non-pecuniary damage is based on a “circular argument” (since “the finding of a violation, which is a sine qua non for just satisfaction, becomes the just satisfaction itself”, see para. 6) and bears the risk to render “the protection of [applicants’] rights illusory and fictitious”. The Judge insisted that “[n]ot making a member State pay an award for non-pecuniary damage, when victims of human rights indeed suffer non-pecuniary damage, does not help in the strengthening of the rule of law of that State, with the possible result that similar violations may be repeated in the future”.

Judge Serghides also opposed the Court’s decision to dismiss the applicants’ claims to cover legal costs and expenses. He considered the Court’s assessment that the application “was straightforward and did not require legal assistance” (see judgment, para. 24) to be wrong as “the need for legal assistance, encompassing the right to have a lawyer, should not depend on whether in the view of the Court […] the case could be handled easily and without legal assistance” (para. 22). Judge Serghides argued to the contrary that the applicants brought and won the case because they had legal assistance and that “it is quite uncertain what would have been the result of the case without such assistance” (para. 21).

He also considered the Court’s decision to be dangerous as it “may be interpreted or taken as discouraging persons to come to the Court with legal assistance [which…] would not only lead to watering down the inalienable right to have legal assistance but may also make the Court and its case-law in the future poorer, because the enrichment and progressiveness of the case-law depends to a great extent to the assistance and contribution of the applicants’ lawyers” (para. 22).

Last, Judge Serghides regretted that no assessment of the applicants’ individual situation had been made by the Court, who also did not award their expenses (EUR 5 for the postage alone, which they would have had to incur even without legal representation), which can be substantial for prisoners (para. 24).

TAKÓ AND VISZTNÉ ZÁMBÓ v. HUNGARY Applications nos. 82939/17 and 1 other First Section Committee  12 October 2023

Art 8 Physical separation with a glass partition during visits by relatives

Facts The two applicants are the wife and mother of a prisoner who had been placed in pre-trial detention in 2014 and classified “high-security inmate”. Following an internal instruction of the Hungarian Prison Service Headquarters, visitors and inmates were not allowed to have any physical contact and had to communicate through a glass partition.
Shortly after, the commander of Budapest Prison requested the Budapest High Court to assess whether it was necessary to maintain the applicants’ visits in a high-security booth, not allowing for any physical contact. While the Budapest High Court considered that such restriction was not necessary, the restrictive measure was not lifted.
Both applicants filed a complaint to the Public Prosecutor’s Office, who dismissed them.
The applications complained under Article 8 on account of their separation from their relative by a glass partition during their visits to him.

Law Article 8

The Court found that, while the Government relied on security reasons to justify the need to separate the applicants from their relative during their visits, there was no evidence that the measure was applied on the basis of a genuine security risk assessment based on the applicants’ relative own conduct. The Court also noted that the applicants had been able to visit their relative without a separation between 2014 and 2017, and referred to the 2017 Budapest High Court opinion, which found that the restriction was not necessary.
According to the authorities, this suggests “that the use of the security installation was a matter of routine rather than a reaction to any specific security risks” (para. 16).

Conclusion Violation of Article 8

Art 41  EUR 5,000 in respect of non-pecuniary damage; EUR 3,600 in respect of costs and expenses

K.P. v. POLAND  Application no. 52641/16 First Section  26 October 2023

Art 8 Restrictions on family visits
Art 5 § 3 ■ Excessive length of applicant’s pre-trial detention amounting to over six years ■ Domestic courts’ reliance on grounds that could not be regarded as “sufficient” to justify entire duration of detention
Art 34 ■ Respondent State discharged procedural obligation under Art 3 to conduct effective investigation into allegations of abuse of power by a prison officer ■ Applicant’s failure to provide information as to why compensation was never sought for breach of personal rights in connection with ill-treatment complained of ■ Victim status lost ■ Inadmissible

Facts The applicant was detained on remand for six years on charges of fraud and money laundering. While in detention, she suffered from depression and various other conditions. As a result of a relationship of dependence that developed between her and a prison officer, she became pregnant and gave birth in detention. The prison officer was subsequently found guilty of abuse of power and sexual abuse in the context of a relationship of dependence. For a period of approximately one year, the applicant was also prevented from receiving visits from family members.
The applicant complained of restrictions on family visits, the excessive length of her detention on remand, and of the abuse of power by a prison officer she fell victim to.

Law Article 8

The Court decided to strike out this part of the application, on the basis of a unilateral declaration of the Government acknowledging a violation of Article 8. It did so even though the applicant requested that the examination of the case be continued, in view of the amount of compensation proposed and the clear and extensive case-law on the topic, including cases brought against Poland (see Piechowicz v. Poland, no. 20071/07, 2012; Horych v. Poland, no. 13621/08, 2012; and Dochnal v. Poland, no. 31622/07, 2012).

Conclusion Struck out

Article 5 § 3 Noting that the primary ground for the applicant’s continuous detention over six years was the likelihood of a heavy sentence (in addition to the need to secure the proper conduct of the proceedings), the Court recalled that “the gravity of the charges cannot by itself justify long periods of detention on remand” (para. 97 with reference to Michta v. Poland, no. 13425/02, 2006).
Furthermore, the alleged risks that the applicant would put pressure on witnesses or tamper with evidence “was not duly reassessed at the later stages of criminal proceedings” (para. 98). Consequently, while appreciating the “extraordinary complexity” of the proceedings (para. 99 – involving the necessity of taking evidence from over 18,000 victims and some 400 other witnesses) found the applicant’s detention to be excessive since the grounds relied on by the domestic courts could not be regarded as sufficient.

Conclusion Violation of Article 5§3

Article 3 The Court considered that the authorities’ response to the applicant’s allegation of abuse had been satisfactory. The criminal proceedings were prompt (although they had been discontinued and were only resumed following the applicant’s appeal), involved the active participation of the victim and led to the conviction of the prison officer. The applicant did not appeal the final judgment and did not seek compensation for the ill-treatment complained of.
Furthermore, disciplinary punishments were imposed on the prison officer and six other prison officers.
Consequently, the Court found that the State has discharged the procedural obligation under Article 3 of the Convention to conduct an effective investigation, accepted the Government’s plea in respect of the applicant’s loss of victim status, and declared this part of the complaint inadmissible ratione personae.

Conclusion Inadmissible (loss of victim status)

Art 41  EUR 6,500 in respect of non‑pecuniary damage

STOTT v. THE UNITED KINGDOM  Application no. 26104/19 Fourth Section  31 October 2023

Articles 14 & 5 ■ Difference in treatment in early release eligibility between prisoners serving an extended determinate prison sentence vis-à-vis standard determinate sentence prisoners and discretionary life sentence prisoners ■ Difference of treatment objectively justified ■ Criteria for determining eligibility for early release are not, or should not be, in principle the same for all categories of prisoner ■ Prisoners sentenced to an extended determinate sentence not sufficiently similar to prisoners under the different sentencing regimes who may present different degrees of offending and dangerousness ■ Impugned legislative measures proportionate and not outside wide margin of appreciation enjoyed by Contracting States in matters of prisoners and penal policy

Facts The applicant was convicted of various sexual offences and sentenced to an extended determinate sentence (EDS) comprising a custodial term of 21 years’ imprisonment and an extended licence period of four years. He was entitled to apply for early release after he had served two-thirds of his custodial term (14 years) – a longer period than if he had received a determinate sentence or a discretionary life sentence (ten and a half years for both). He found this provision to be discriminatory, in breach of Article 14 taken in conjunction with Article 5 of the Convention.

Law Article 14 taken in conjunction with Article 5

The Court distinguished the applicant’s situation from two key cases he invoked to support his complaint that, while being in an analogous situation to life-sentence or determinate sentence prisoners condemned for the same crime, he was treated differently.

The Court argued that its reasoning in Clift v. the United Kingdom (no. 7205/07, 2010), in which it found the additional procedural requirements imposed on specific categories of prisoners eligible for early release to be granted release to breach Article 14, cannot be transposed in the present case which concerned “the point in the applicant’s sentence at which he will become eligible to seek early release” (para. 102). While the method for assessing the risk posed by a person eligible for early release should be the same irrespective of the initial sentence, “it cannot be said that the criteria for determining eligibility for early release are, or should be, in principle the same for all categories of prisoner” (para. 102). The Court found “compelling” the Government’s argument that “eligibility for early release should be tailored to the dangerousness of particular offenders and the seriousness of their offences” (idem).

Similarly, the Court stressed that its judgment in Khamtokhu and Aksenchik v. Russia ([GC], nos. 60367/08 and 961/11, 2017), “cannot be seen as authority for the more general statement that all offenders convicted of the same or comparable offences must always be considered to be in an analogous situation in respect of any complaint they may make” (para. 103). In respect of accessibility to early release, prisoners sentenced to an EDS and “determinate sentence prisoners and discretionary life sentence prisoners may present different degrees of offending and dangerousness” (para. 104) and therefore cannot be regarded as constituting similar groups. The Court also considered singling out early release provisions for comparisons between different groups of prisoners lacked relevance “having regard to the complexity of the sentencing regimes in England […] and the variations in terms of the criteria for their imposition, eligibility for early release, the extent of licence provisions, entitlement to release and arrangements for release after recall” (para. 105).

The Court, “in any event” (para. 106) and “in view of the margin of appreciation enjoyed by the respondent State in this field” (para. 107), found the aim pursued by the different sentencing regimes (i.e. “to cater for different combinations of offending and risk in appropriate ways” idem) to be legitimate, and the legislative measures implemented to this realise it to be proportionate. While noting that domestic courts might have expressed concern as to the proportionality of the measure taken, the Court considered “that these issues relate to policy considerations best resolved by the authorities of the respondent State” (para. 107).

Conclusion No violation

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