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
YALAHOW v. THE UNITED KINGDOM (dec.) ■ Application no. 42341/21
Recall of prisoner released on licence while serving a fixed-term determinate sentence: inadmissible (incompatible ratione materiae).
TATIČ v. SLOVAKIA ■ Application no. 8280/23
Systematic practice of routine thorough strip searches in the absence of convincing security reasons: violation of Article 3.
GERGELY v. ROMANIA ■ Application no. 46890/21
Refusal to provide the applicant with meals in accordance with his new religion (Islam); requirement for the applicant to provide documentary evidence of his religious conversion: Violation of Article 9.
AKTAŞ AND OTHERS v. TÜRKİYE ■ Applications nos. 7199/20 and 6 others
Refusal by the prison authorities to hand over publications (books, newspapers) sent to prisoners by post; measure not based on a content-specific analysis capable of justifying the interference: violation of Article 10.
HORA v. THE UNITED KINGDOM ■ Application no. 1048/20
Ineligibility of a prisoner serving an indeterminate sentence of imprisonment to vote in 2019 parliamentary election: no violation of Article 3 of Protocol No. 1.
SUMMARY JUDGMENTS
Russia | Inadequate conditions of detention during prisoners’ transport – overcrowding, lack of or poor quality bedding and bed linen, no or restricted access to shower, no or restricted access to toilet, no or restricted access to warm water (Mazurin and Grebennikov v. Russia, nos. 49870/20 and 3757/21, 18 September 2025): violation of Article 3.
COURT OF JUSTICE OF THE EUROPEAN UNION
C.J. [GC] ■ Case C‑305/22 (Request for a preliminary ruling, Romania)
The decision of the executing judicial authority to refuse the execution of an EAW issued for the purpose of enforcing a criminal sentence, and to assume responsibility for the enforcement of that sentence, is subject to the consent of the issuing State, in accordance with the rules laid down in Framework Decision 2008/909.
The issuing State may refuse this assumption of responsibility by the executing State on the basis of considerations relating to its criminal policy even where considerations relating to the requested person’s reintegration into society would argue in favour of enforcing that sentence in another Member State.
Where the executing State has not followed the procedure laid down in Framework Decision 2008/909 as regards the recognition of that judgment and that assumption of responsibility, the issuing State retains the right to enforce that sentence and, consequently, to maintain the EAW.
EUROPEAN COURT OF HUMAN RIGHTS
YALAHOW v. THE UNITED KINGDOM (dec.) ■ Application no. 42341/21 ■ Second Section ■ 2 September 2025
This legal summary was prepared by the Court’s Registry.
Art 5 § 4 ■ Review of lawfulness of detention ■ Application inadmissible ■ Distinction between determinate sentences (where the end date of the sentence is fixed with reference to the gravity of the offence) and certain indeterminate sentences where the end date is not fixed and where the grounds relied on by the sentencing judge are by their nature susceptible of change with the passage of time.
Facts ■ In 2017 and 2018 respectively the applicant was convicted of two criminal offences receiving an initial determinate sentence of two years and three months followed by a further determinate sentence of one year and six months. On 31 May 2019, halfway through those fixed-term determinate sentences, and in accordance with the applicable statutory scheme, the applicant was released from prison on licence.
On 31 July 2019 that licence was revoked by the Secretary of State due to behavioural concerns. A decision was taken to recall the applicant to prison and on 2 August 2019 he was returned to custody. Although the applicant’s case was referred to the Parole Board on two occasions, they declined to direct his re-release.
On 29 March 2021 after the expiry of his determinate sentences the applicant was released from imprisonment and his liability to be subject to a licence expired on the same day.
Law ■ Admissibility
General principles: Weeks v. the United Kingdom, 9787/82, 2 March 1987; Ganusauskas v. Lithuania (dec.), 47922/99, 7 September 1999; Brown v. the United Kingdom (dec.), 968/04, 26 October 2004; Etute v. Luxembourg, 18233/16, 30 January 2018.
(1) Relevant case-law
In Ganusauskas v. Lithuania (dec.), where a prisoner had been rearrested following the quashing of an order for his conditional release on the basis that the order should not have been made, the Court rejected that applicant’s complaint under Article 5 § 4 as manifestly ill-founded. The Court noted that Article 5 § 4 only applied to proceedings in which the lawfulness of detention was challenged and that the necessary supervision of the lawfulness of detention “after conviction by a competent court” had been incorporated at the outset in the applicant’s original trial and the appeal procedures against the conviction and sentence.
In Brown v. the United Kingdom (dec.), the Court also rejected as manifestly ill-founded the complaint under Article Article 5 § 4 of a prisoner who had been released on licence at the two-thirds point of his sentence, but had been later recalled to prison for breach of his licence conditions. The Court recalled that where an applicant had been convicted and sentenced by a competent court to a determinate term of imprisonment for the purposes of punishment, the review of the lawfulness of detention was incorporated in the trial and appeal procedures. No new issues of lawfulness concerning the basis of the applicant’s detention had arisen on recall and no right to a fresh review of the lawfulness of his detention had arisen for the purposes of Article 5 § 4.
In contrast, in Etute v. Luxembourg the Court found that Article 5 § 4 had been applicable following the revocation of a prisoner’s conditional release. The Court again recalled that in the case of detention following a “conviction by a competent court” the review required by Article 5 § 4 was incorporated into the judgment and that provision did not require a separate review of the lawfulness of the detention. However, it noted that when new questions about the lawfulness of detention arose after the judgment, Article 5 § 4 applied again and required judicial review. The Court therefore had to determine whether new questions of legality had arisen in relation to the applicant’s re‑incarceration and his subsequent detention in the execution of his sentence and, to that end, examine the course of events from the initial conviction to the revocation of his licence and the repercussions which the various measures had had on his situation. In concluding that Article 5 § 4 had been applicable the Court considered it relevant that the decision to release the applicant on parole had constituted an interruption in the execution of the sentence imposed on him, the time spent on parole had not been counted against the length of the sentence; and that his re-incarceration had depended on a new decision, namely that of the revocation of the conditional release.
(2) Application of the principles developed in the case-law to the facts of the case
The Court’s conclusion in Brown was entirely consistent with its earlier decision in Ganusauskas. While the Court was not formally bound to follow any of its previous judgments, it was in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without good reason, from precedents laid down in previous cases. Therefore, in light of Etute, the Court had to determine whether it should now depart from Ganusauskas and Brown.
In that regard, it was noteworthy that in Etute the Court had not referred to either Ganusauskas or Brown, even though those decisions – and their potential incompatibility with Etute – had been discussed at some length by Judges Pinto de Albuquerque and Kūris in their Concurring Opinions. The Court had therefore been aware of its previous case-law and if it had intended to depart from it, it should have provided good reasons for doing so. Alternatively, if it had considered that the resolution of the Article 5 § 4 question might have had a result inconsistent with its previous case-law, it should have relinquished jurisdiction to the Grand Chamber. The fact that the Court did neither meant that – notwithstanding the views expressed in the Concurring Opinions – it could not be taken to have departed from its previous case-law, or to have intended its conclusions to be inconsistent with that case-law. The Court further noted that the conclusions in Etute had not been followed in any subsequent cases and therefore, had not been applied outside the specific facts of that case.
In the absence of reference in Etute to Ganusauskas or Brown, it was not clear why the Court had considered that on the specific facts of that case new issues of lawfulness had arisen following the applicant’s re-incarceration, and that Article 5 § 4 had been applicable. Insofar as it had relied on the fact that Mr Etute’s re-incarceration had depended on a new decision – the revocation of the conditional release – that had also been true of the applicant in Brown.
However, the Court had also considered it relevant that the decision to release a prisoner in Luxembourg on parole had constituted an interruption in the execution of the sentence imposed on him, and the time spent on parole had not been counted against the length of the sentence. It was clear that the position in the United Kingdom – following the recall of both Mr Brown and the applicant – was entirely different from that in Luxembourg. When a determinate sentence prisoner was released on licence in the United Kingdom, that release was itself part of the execution of the sentence, meaning that time spent on conditional release continued to represent the penalty for his offending and therefore counted against the sentence. As there was no room for the sentence to be extended beyond that final end date, the decision to release the prisoner did not interrupt the execution of his sentence.
Both the present case and Brown were clearly distinguishable from Etute on that basis. Such a distinction was consistent with Weeks v. the United Kingdom, in which the Court had held that Article 5 § 4 had been applicable following the recall to prison of a prisoner serving an indeterminate sentence of life imprisonment. The Court had observed, that, unlike the case of a person sentenced to life imprisonment because of the gravity of the offence committed, the grounds relied on by the sentencing judges for deciding that the length of the deprivation of Mr. Weeks’ liberty should be subject to the discretion of the executive for the rest of his life – those grounds being social protection and rehabilitation – had been by their nature susceptible of change with the passage of time.
Accordingly, there was clear precedent for distinguishing, in the context of Article 5 § 4, between sentences – such as determinate sentences – where the end date of the sentence was fixed with reference to the gravity of the offence and sentences – such as certain indeterminate sentences – where the end date was not fixed and where the grounds relied on by the sentencing judge were by their nature susceptible of change with the passage of time. The present case had undoubtedly fallen into the former category, as the end date of the applicant’s sentence had been fixed and the entirety of the sentence, whether served in prison or on licence, had represented the penalty for his offending. In contrast, in Etute the end date of the fixed sentence had ceased to be ascertainable as soon as it had been interrupted by the prisoner’s conditional release.
In light of the foregoing, the Court found no good reason to depart from its decision in Brown, where the applicant had been serving the same sentence in the same legal jurisdiction as the applicant. It therefore concluded that Article 5 § 4 did not apply following the applicant’s recall to prison as no new issues of lawfulness had arisen concerning the basis of his detention.
Conclusion ■ Inadmissible (incompatible ratione materiae).
© Council of Europe/European Court of Human Rights
TATIČ v. SLOVAKIA ■ Application no. 8280/23 ■ Fifth Section Committee ■ 4 September 2025
Art 3 ■ Systematic practice of routine thorough strip searches in the absence of convincing security reasons for an extensive period of time ■ Applicant’s behaviour throughout the service of his prison sentence not taking into account ■ Relevant legal provisions prescribing searches do not leave discretion to the prison authorities in their application.
Facts ■ The applicant, convicted of a serious offence committed as a member of an organised group, has been detained since 2015. He complained about thorough strip searches (dôkladné osobné prehliadky, “TSS”) which included, inter alia, undressing and squatting, to which he was subjected, in particular before and after each transfer within the prison system (including for interrogations and court hearings), and the alleged lack of an effective domestic remedy in this regard. Between 2015 and 2022, the applicant was transferred within the prison system at least 41 times. However, the Government was unable to provide a record of the TSSs to which the applicant was subjected as no report was drawn up if the search did not reveal a prohibited item.
In October 2022, the applicant filed a complaint with the Public Prosecution Service (“PPS”) in respect of the TSSs carried out on the occasion of his transfer from the Leopoldov prison on 2 May 2022 and during all previous transfers. During the proceedings, the authorities argued that the TSSs were carried out in line with applicable legal regulations and with a view to discovering prohibited items (ia drugs). They also stressed that the applicant had been convicted of a serious offence and argued that the TSS were carried out “to prevent him from undermining the purpose of his detention and to ensure security and order on the protected premises and during transfers” (§ 4).
Law ■ Article 3
General principles: Roth v. Germany nos. 6780/18 and 30776/18, §§ 64-69, 22 October 2020; Adamčo v. Slovakia (no. 2) no. 55792/20, § 82-102, 12 December 2024; Milka v. Poland, no. 14322/12, § 48, 15 September 2015; Laduna v. Slovakia (dec.), no. 31827/02, 20 October 2010; Ribár v. Slovakia, no. 56545/21, §§ 71 and 82-85, 12 December 2024.
(a) Admissibility
The Court rejected the Government’s objection that the applicant had failed to exhaust domestic remedies. Based on its previous case law (Adamčo v. Slovakia (no. 2), Ribár v. Slovakia), it stressed that the “alleged violation thus could not have been effectively challenged at the domestic level” (§ 8) since the legal provisions governing the obligation to carry out a TSS left no discretion in their application.
The Court also rejected the Government’s objection that since the applicant had first complained at the national level about the TSS carried out on 5 May 2022, all previous TSSs (which were also challenged in his 2022 complaint) were outside its temporal jurisdiction. The Court considered that the situation may be regarded as a continuing one since the applicant had been subjected to TSS since his incarceration.
(b) Merits
The Court noted that it was not contested that the applicant had been subjected to a TSS before and after each transfer within the prison system, that on those occasions he had to undress and been ordered to perform a squat, and that during his transfers he had been under the direct supervision prison officers and had had no contact with other persons (including other prisoners or his lawyer).
The Court declared it was not convinced by the Government’s argument that the TSSs were imposed out of security concerns stemming from the applicant’s serious criminal offences. It reiterated that “although the reference to the offences committed by the applicant is not entirely unfounded, the applicant’s subsequent behaviour while serving his sentence must also be taken into account (§ 17, referring to Adamčo, §§ 91‑92). In this respect, it noted that the applicant had not received any disciplinary sanctions since his incarceration in 2015, received three disciplinary rewards, and was transferred to a medium security level prison in 2023 due to his positive attitude. The Court also stressed that the applicant had not been found in possession of prohibited items throughout his long incarceration, despite his many transfers.
The Court observed that the exact number of TSS could not be established given the absence of any records. However, it considered established that the applicant was subjected to TSS “frequently and on many occasions, considering the lack of any discretion on the part of the prison authorities” (§ 18). In particular, the Court noted that since 2015 the applicant was transferred at least 41 times and was subjected to a TSS before and after the transfer. It considered that the prison authorities’ security concerns were not convincing “given that the applicant had no contact with other persons during the transfers and was under the constant supervision of the prison officers”, which significantly reduced the risk of him acquiring illegal items (ibid.).
Conclusion ■ Violation of Article 3.
Article 41 ■ EUR 15,000 in respect of non-pecuniary damage; EUR 1,000 for costs and expenses.
GERGELY v. ROMANIA ■ Application no. 46890/21 ■ Fourth Section Committee ■ 16 September 2025
Art 9 ■ Refusal to provide the applicant with meals in accordance with his new religion (Islam) ■ Requirement for the applicant to provide documentary evidence of his religious conversion during his detention.
Facts ■ The applicant converted to Islam in August 2021 while he was detained in Oradea prison. He argued that his request, dated 20 August 2021, to be provided with meals in accordance with his new religion was rejected by the prison administration.
He challenged this refusal before the judge responsible for monitoring deprivation of liberty at Oradea Prison. During the hearing, the applicant stressed that he was unable to provide documentary evidence of his conversion, due to his deprivation of liberty, as required by the applicable legal provisions. In September 2021, the judge ruled that, in the absence of a certificate of conversion from the Muslim religious authorities, the prison administration’s refusal was justified. In December 2021, the Oradea Court of First Instance upheld this ruling, on the grounds that the applicant had not provided proof of his conversion.
Law ■ Article 9
General principles: Neagu v. Romania, no. 21969/15, §§ 29-34, 10 November 2020; Saran v. Romania, no. 65993/16, §§ 31-35, 10 November 2020.
The Court noted that the applicant’s complaint had been rejected by the judge responsible for monitoring deprivation of liberty at Oradea Prison, on the grounds that he had failed to produce a certificate of conversion from the new religion, but that the judge had also expressed doubts about the sincerity of his religious conversion. The Court was unable to identify which factual elements were taken into account by the above-mentioned judge in casting doubt on the applicant’s religious conversion, and recalled that, save in exceptional cases, the right to freedom of religion precludes any assessment by the State of the legitimacy of religious beliefs or the manner in which they are expressed.
In any event, the Court noted that the Oradea Court of First Instance had rejected the applicant’s request solely on the grounds that he had not provided the documentary evidence required by law, without referring to the sincerity of the applicant’s conversion. The requirement for the applicant to provide documentary evidence of his religious conversion during his detention constitutes therefore the main element of the application.
The Court noted that, despite the arguments put forward by the Government in this regard, the domestic courts had not examined the possibility that the applicant could have benefited from the assistance of prison staff in obtaining written proof or other confirmation of his membership of the new religion, particularly in view of the restrictions imposed by his detention.
The Court also rejected the Government’s argument that he could have obtained a vegetarian meal without any formalities and regardless of his religious beliefs. In particular, the Court stated that “given the nature of his complaint, [it] cannot criticise the applicant for not having requested this alternative meal, especially when domestic law offered him the possibility of a meal in accordance with the precepts of a religion recognised by law” (§ 18).
Finally, the Court indicated that the legislative changes made in 2023, under which written proof of conversion was no longer required, had no bearing on the case as they did not become applicable until after the period covered by the applicant’s complaint, namely from August to December 2021.
Conclusion ■ Violation of Article 9.
Article 41 ■ EUR 500 in respect of non-pecuniary damage; EUR 50 in respect of costs and expenses.
AKTAŞ AND OTHERS v. TÜRKİYE ■ Applications nos. 7199/20 and 6 others ■ Second Section Committee ■ 23 September 2025
Art 10 ■ Right to receive information and ideas ■ Measure not based on a content-specific analysis capable of justifying the interference ■ Rejection of domestic Constitutional Court’s approach on the matter (ie justifying the measure ia by the substantial burden placed on prisons to monitor such publications sent by post).
Facts ■ The six applicants complained that the prison authorities refused to hand over to them certain publications sent to them by post (books and newspapers).
At the material times, they were detained (on remand or following conviction) in different prisons for security-related offences (activities to remove part of the national territory from the State’s control, membership of an armed terrorist organisation, attempt to overthrow the constitutional order, several offences committed within the scope of the activities of the PKK).
The prison authorities refused to hand them publications either on security-based grounds (eg that they were “of such a nature as to endanger the order and security of the prison”, §4) or because they contained obscene passages. Some of the publications that were withheld on security grounds were linked to the Workers’ Party of Kurdistan (PKK), eg books authored by Abdullah Öcalan, the imprisoned leader of the PKK.
The domestic courts rejected their complaints, arguing that the prison authorities acted in line with law and procedure. The Constitutional Court declared the applicants’ individual applications inadmissible as being manifestly ill-founded. In all cases but one, it based its reasoning on its leading decision in this matter (İbrahim Kaptan (2), no. 2017/30723, 12 September 2018), in which it argued that “the withholding of publications sent to prisoners by post in breach of legal procedures met a pressing social need to ensure the security of prisons and the measure was proportionate, given the substantial burden placed on prisons to monitor such publications” (§ 24).
Law ■ Article 10
General principles: Osman and Altay v. Türkiye, nos. 23782/20 and 40731/20, §§ 43-51, 18 July 2023; Mehmet Çiftci v. Turkey, no. 53208/19, §§ 35-38, 16 November 2021
The Court considered that the withholding of publications sent to prisoners by post constituted an interference with their right to receive information and ideas under Article 10. It noted that such interference was prescribed by law and pursued “the legitimate aim of the protection of national security, public safety, the prevention of disorder and crime and the rehabilitation of the convicted persons” (§ 35).
However, the Court found that the interference was not necessary in a democratic society. The Court considered that the decisions to withhold the publications were not based on a content-specific analysis capable of justifying the interference. In particular, with respect to two of the applicants, the decision to withhold the publications “merely referred in abstract terms to the general content of the publications without identifying any specific pages or passages deemed non-disclosable or explaining how the content in question could be considered to incite violence, jeopardise prison order or security or facilitate illicit communication” (§ 39). In respect of four applicants, the decision’s reasoning was confined to “citing page numbers containing passages deemed problematic” (§ 41).
Lastly, the Court considered that the domestic courts failed to give relevant and sufficient reasons to justify the interference with the applicants’ right to receive information. In particular, the Constitutional Court “dismissed the applications with summary decisions with quite succinct reasoning” (§ 42). Furthermore, the Court recalled that it had rejected the Constitutional Court’s approach in its leading decision İbrahim Kaptan (2) in its judgment Osman and Altay (see §§ 53 and 56 of this case).
Conclusion ■ Violation of Article 10.
Article 41 ■ The Court considered that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage alleged. In respect of costs and expenses, it awarded the second and the fourth applicants a sum of EUR 500 each and the sixth applicant EUR 7 for costs and expenses incurred in the proceedings before it and rejected the remaining claims.
HORA v. THE UNITED KINGDOM ■ Application no. 1048/20 ■ Second Section ■ 23 September 2025
This legal summary was prepared by the Court’s Registry.
Art 3 P1 ■ Ineligibility of prisoner serving an indeterminate sentence of imprisonment to vote in 2019 parliamentary election ■ Clear guidance in the Court’s case-law on whether the disenfranchisement of a prisoner serving an indeterminate sentence following conviction of a serious offence is compatible with Art 3 P1 ■ No general support domestically for enfranchisement of prisoners convicted of serious offences serving lengthy or indeterminate sentences ■ Unjustified to examine impugned provision in the abstract or to identify categories of prisoners whose disenfranchisement might be incompatible with Art 3 P1 ■ Disenfranchisement of applicant on account of the seriousness of offending, his conduct, his risk to the public and the imposition of a harsh sentence, not disproportionate ■ Continued disenfranchisement, despite expiry of minimum term of imprisonment, proportionate.
Facts ■ In 2005 the Court found in Hirst v. the United Kingdom (No. 2) [GC] that the disenfranchisement of all convicted prisoners under section 3 of the Representation of the People Act 1983 (“the 1983 Act”) was incompatible with Article 3 of Protocol No. 1. In light of section 3 the Court has subsequently found a violation of Article 3 of Protocol No. 1 in respect of a number of applicants disenfranchised in United Kingdom elections which took place up to and including 8 June 2017.
In 2010 in Greens and M.T. v. the United Kingdom the Court indicated specific measures under Article 46 of the Convention, stipulating a timetable for the introduction of legislative proposals to address the impugned provision. No amending legislation has been enacted, however, and in a 2017 Action Plan, the respondent Government proposed administrative measures aimed at ensuring the execution of Hirst. This was followed by an Action Report explaining how the measures had been implemented. On the basis of the implementation of those measures, in 2018, the Committee of Ministers of the Council of Europe closed its examination of the Hirst group of cases, concluding its supervision of the execution of the judgments handed down against the United Kingdom before that.
In 2007 the applicant was convicted of rape and sexual assault and, having been previously convicted of rape, was sentenced to an indeterminate sentence of imprisonment for the public protection. The minimum term of his sentence expired in 2011, however, pursuant to domestic law, he remains in detention as the Parole Board has not yet recommended his release due to public protection concerns.
On 12 December 2019 a general (parliamentary) election took place. Under section 3 of the 1983 Act the applicant was prevented from voting in that election. The applicant did not bring any domestic proceedings concerning his ineligibility to vote. He complains his ineligibility was in violation of Article 3 of Protocol No. 1.
Law ■ Article 3 of Protocol No. 1
General principles: : Hirst v. the United Kingdom (no. 2) [GC], 74025/01, 6 October 2005; Greens and M.T. v. the United Kingdom, 60041/08 and 60054/08, 23 November 2011; Scoppola v. Italy (no. 3) [GC], 126/05, 22 May 2012; Kalda v. Estonia (no. 2), 14581/20, 6 December 2022; Resolution CM/ResDH(2018)467 of the Committee of Ministers of the Council of Europe, Execution of the judgments of the European Court of Human Rights, Five cases against the United Kingdom, adopted on 6 December 2018.
The restriction on the applicant’s right to vote under section 3 of the 1983 Act amounted to an interference under Article 3 of Protocol No. 1. The Court reaffirmed that the disenfranchisement of convicted prisoners pursued the legitimate aims of “preventing crime by sanctioning the conduct of convicted prisoners” and “enhancing civic responsibility and respect for the rule of law”.
(1) The scope of the Court’s review
(i) Introduction – The present case was the first to come before the Court concerning an election which had taken place following the completion by the Committee of Ministers of its supervision of the execution of the judgments in the Hirst group of cases. It could not be said that the Committee of Ministers powers were being encroached on where the Court has to deal with relevant new information – the applicant’s ineligibility to vote in the 2019 election after the application of the new administrative measures – in the context of a fresh application. However, the Court’s approach to the examination of the complaint had to take account of relevant developments since its Hirst judgment had been adopted. It was therefore necessary to consider the scope of its review, taking into account its Article 46 indication in Greens and M.T., subsequent relevant developments, and the 2018 Resolution of the Committee of Ministers.
(ii) The Article 46 indication in Greens and M.T. – In Greens and M.T. the Court’s Article 46 indication stipulating a timetable for the introduction of legislative proposals, was with a view to “the enactment of an electoral law to achieve compliance with the Court’s judgment in Hirst according to any time-scale determined by the Committee of Ministers”. Despite no amending legislation being ultimately enacted the Court could not accept that such an enactment had been a necessary condition for execution of the Hirst judgment and that no weight could therefore be accorded to the Committee of Ministers Resolution in respect of the Hirst group of cases. The use of the pilot judgment procedure by the Court was pursued with due respect for the Convention organs’ respective functions. An approach which limited the supervision process to the Court’s explicit indications would remove the flexibility needed by the Committee of Ministers to supervise, on the basis of the information provided by the respondent State and with due regard to the evolving situation, the adoption of measures that were feasible, timely, adequate and sufficient.
At the time the Court had made its Article 46 indication legislative proposals had been under active consideration by the respondent Government. The indication had not stipulated that legislative amendment had been required but rather proceeded on the basis that the Government and the Committee of Ministers had already identified such amendment as the relevant specific measure necessary for the execution of the Court’s judgment in Hirst. In setting out a timetable for the introduction of these proposals, the indication had been complementary to the supervision exercise being undertaken by the Committee of Ministers to encourage the speedy execution of the Hirst judgment with a view to ensuring the effectiveness of the Convention machinery as a whole. That complementarity was further clear from the Court’s reference to the anticipated role of the Committee of Ministers in determining any time-scale for the enactment of the measures.
(iii) Relevant developments since Hirst – In light of the developments in the Court’s case-law after Hirst, there was clear guidance on whether the disenfranchisement of a prisoner serving an indeterminate sentence following conviction of a serious offence would be compatible with Article 3 of Protocol No. 1. In addition, there had been a number of consultations culminating in the preparation of a draft bill and its examination by a Joint Committee of Parliament. That Joint Committee had recommended the enfranchisement of those sentenced to a term of twelve months or less – resulting in an amendment in Scotland where those sentenced to a term of imprisonment not exceeding twelve months are now entitled to vote in local and Scottish parliamentary elections. To the extent that there remained some divergence of views within or among the democratic institutions in the United Kingdom as to which prisoners ought to be permitted to vote, it was now quite clear that there was no general support for the enfranchisement of prisoners convicted of serious offences and serving lengthy or indeterminate sentences of imprisonment. It could therefore be said with some confidence that if Parliament chose to amend the current law as it applies to general elections in the United Kingdom, restrictions on the right to vote would still apply to prisoners, such as the applicant, convicted of serious offences and serving indeterminate sentences. Finally, the Supreme Court had examined the disenfranchisement of a prisoner serving a life sentence, in the light of the further guidance given Scoppola v. Italy (no. 3) [GC]. It had declined to make a declaration that section 3 of the 1983 Act was incompatible with the Convention because it was clear, following Scoppola, that the ineligibility to vote of the particular claimant in the case before it had been compatible with Article 3 of Protocol No. 1. The view that legislation might be found to be compatible with the Convention rights in the circumstances of one applicant, while incompatible with Convention rights in the circumstances of another was also supported by the Court’s case-law.
(iv) The Committee of Ministers 2018 Resolution – The 2018 decision of the Committee of Ministers to close its examination of the Hirst group of cases, while not precluding the Court from examining the present case concerning the subsequent 2019 election, did have a bearing on its approach to the applicant’s complaint. Having widely debated the issue at domestic level and engaged in enhanced dialogue with the Committee of Ministers and the Secretary General of the Council of Europe, the respondent State had chosen to maintain its existing legislative approach and to make administrative changes to the disenfranchisement regime in place. Those changes had been accepted by the Committee of Ministers as sufficient, in light of the applicable wide margin of appreciation, to address the concerns regarding the general legislative framework expressed in Hirst. This was not, therefore, a case where the closure of the supervision process had been based on the introduction of significantly revised legislation intended to address the problems identified and whose ultimate compatibility with the Convention had fallen to be examined carefully by the Court.
The Court’s judgments were intended to promote the practical and effective application of Convention rights. The process of dialogue in respect of the applicable legal framework, rendered possible by the interaction of the processes before the Court and the Committee of Ministers with the engagement of the respondent Government, plays a crucial role in securing the practical and effective protection of Convention rights in accordance with the principle of subsidiarity. Once that dialogue has reached its conclusion, it remained for the Court to determine whether the application of the legislative framework in the case of a particular applicant had resulted in a Convention violation. The focus of the Court’s examination at that stage remained on securing the practical and effective observance of the Convention.
(v) Conclusion – In view of the foregoing considerations, having regard to the wide margin of appreciation applicable in this area, it was not justified to examine the Convention compatibility of section 3 of the 1983 Act in the abstract or to identify particular categories of prisoners whose disenfranchisement might be incompatible with the right to vote. Instead, the Court had examined the manner in which section 3 had been applied to the applicant, in his particular circumstances, in order to determine whether the restriction on his right to vote had been compatible with Article 3 of Protocol No. 1. Although it had not been argued that the applicant had failed to exhaust available domestic remedies by not seeking a declaration of incompatibility, the Court noted that had the domestic courts been given the opportunity to perform a proportionality review it would have had the benefit of their views in determining the compatibility of the applicant’s ineligibility to vote.
(2) Proportionality of the present applicant’s inability to vote at the 2019 general election
The applicant had been convicted of rape and sexual assault and also had a previous conviction for rape. There could be no doubt as to the gravity of those offences which resulted in the imposition of an indeterminate sentence of which he had yet to be released due to ongoing public protection concerns. The Court had previously accepted as compatible with Article 3 of Protocol No. 1 the removal of the right to vote from prisoners convicted of serious offences warranting a particularly harsh sentence of imprisonment. Taking into account its case-law, it could not be said that the disenfranchisement of the applicant, on account of the seriousness of his offending, his conduct, the risk he had been found to pose to the public and the resulting imposition of a harsh sentence of indeterminate detention, had been disproportionate to the legitimate aims pursued by restrictions of the franchise applied to convicted prisoners. That conclusion was not affected by the expiry of the minimum term imposed by the sentencing court. The applicant’s continued disenfranchisement, pursuant to his continued detention under an indeterminate sentence of imprisonment, remained proportionate to the legitimate aims pursued by that measure, and in particular to the aim of enhancing civic responsibility and respect for the rule of law. It was noteworthy that once the applicant had been deemed safe for release by the Parole Board and had, consequently, been released, his right to vote would be restored to him.
Conclusion ■ No violation of Article 3 of Protocol No. 1.
© Council of Europe/European Court of Human Rights
COURT OF JUSTICE OF THE EUROPEAN UNION
C.J. ■ Case C‑305/22 (Request for a preliminary ruling, Romania) ■ Grand Chamber ■ 4 September 2025
This summary is adapted from the legal summary prepared by the CJEU.
Art 4(6) FD 2002/584/JHA ■ EAW issued for the purposes of executing a custodial sentence ■ Grounds for optional non-execution of the European arrest warrant ■ Conditions for an executing Member State’s assumption of responsibility for the execution of that sentence.
Art 25 FD 2008/909/JHA ■ Mutual recognition of judgments in criminal matters for the purpose of their enforcement in another Member State ■ Requirement of consent on the part of the issuing State as regards another Member State’s assumption of responsibility for the enforcement of such a sentence.
Facts ■ The case concerned, in essence, the question of whether an executing state can decide unilaterally not to execute a EAW and enforce, on its territory, a sentence pronounced in the issuing State, despite the express disagreement of that issuing State.
In November 2020, the Court of Appeal of Bucharest issued a European arrest warrant (EAW) against the requested person (C.J.) for the purpose of enforcing a custodial sentence imposed on him in June 2017. C.J. was subsequently arrested in Italy in December 2020.
In January 2021, at the request of the Italian judicial authorities, the Romanian judicial authorities forwarded them the sentence judgment but declared that they would not consent to Italy’s assumption of responsibility for enforcing the sentence imposed on C.J.
In May 2021, the Court of Appeal of Rome refused to surrender C.J. to the Romanian authorities, holding that “it was appropriate to enforce that sentence in Italy in order to improve the chances of social rehabilitation for C.J., who was legally and actually resident in Italy” (para. 26). It recognised the sentencing judgment pronounced by Romania’s judicial authorities and ordered that the sentence be enforced in Italy. A few weeks later, in June 2021, the Italian judicial authorities informed their Romanian counterparts that C.J. was under “house arrest with concurrent suspension”, with details on the start and end dates of this sentence.
The Romanian judicial authorities reiterated their position and stated that, “as long as they were not informed of the start of the enforcement of C.J.’ s prison sentence, they would retain the right to enforce the sentencing judgment” (para. 30). They added that both the national warrant for enforcement of the prison sentence imposed on C.J. and the EAW remained in force.
In this context, the Court of Appeal of Bucharest decided to refer the case to the EU Court of Justice for a preliminary ruling.
Law ■ Article Art 4(6) FD 2002/584/JHA; Article 3(2) FD 2002/584
(1) The impact of FD 2008/909 on the ground for optional non-execution under Article 4(6) of FD 2002/584
The Court stressed that Framework Decision (FD) 2002/584 on the EAW and FD 2008/909 on the mutual recognition of judgments should be implemented consistently, since “there is nothing to indicate that the EU legislature intended to provide for two separate legal systems as regards the recognition and enforcement of judgments in criminal matters” (para 45).
Consequently, the Court held that “where an executing judicial authority intends to refuse, on the basis of the ground for optional non-execution […], the execution of a [EAW] issued for the purposes of enforcing a custodial sentence, the recognition of the sentencing judgment and of the assumption of responsibility for the enforcement of that sentence are governed by [FD] 2008/909” (para 51).
The Court argued that FD 2008/909 requires the issuing State’s consent for the executing State to assume responsibility for the enforcement of a sentence. This consent is manifested by the forwarding, to the executing State, of the sentencing judgment, together with a certificate set out in Annex I to that FD. In the present case, such a certificate was not forwarded, and the issuing authority explicitly disagreed with Italy’s assumption of responsibility for the enforcement of the sentence imposed on C.J.
Regarding the objective of increasing the requested person’s chances of social rehabilitation upon expiry of their sentence, which is common to both FDs (para. 47), the Court held that this objective “however important it may be, is not absolute” (para. 62). It considered that “in view of the various functions of the sentence within society, the Member State in which a person has been convicted may legitimately rely on its own criminal policy considerations in order to justify the sentence imposed being enforced on its territory […] even where considerations relating to the requested person’s reintegration into society might militate in favour of enforcing that sentence on the territory of another Member State.” (para 63). The Court stressed that the issuing State enjoys discretion in this regard (para. 65).
(2) Whether the issuing State can enforce a custodial sentence where the executing State has refused to execute an EAW
In view of the conclusion at the first point, the Court observed that, in the present case, the refusal to execute the EAW breached the conditions and procedure in FD 2008/909. Consequently, the “arrest warrant may be maintained by the issuing judicial authority […and] the issuing State retains the right to enforce that sentence” (para. 76).
The Court emphasised that “ if the executing State could, on the basis of [the objective of facilitating the social rehabilitation of the person concerned], refuse to execute a [EAW] for the purposes of enforcing a custodial sentence, without the consent of the issuing State to its assumption of responsibility for that enforcement, that could create a high risk of impunity for persons who attempt to evade justice after being convicted in a Member State” (para. 82).
(3) Whether a decision by the executing State to refuse to execute an EAW is covered by the concept of ‘finally judged … in respect of the same acts’ within the meaning of Article 3(2) FD 2002/584
The Court found that a decision by the executing State to refuse to execute a EAW under Article 4(6) FD 2002/584, to recognise the sentencing judgment, and to order the enforcement of that sentence in its territory, cannot be regarded as being covered by the concept of ‘finally judged … in respect of the same acts’ within the meaning of Article 3(2) FD 2002/584. According to this provision, the non-execution of the EAW is mandatory when “if the requested person has been finally judged by a Member State in respect of the same acts, provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State”. The Court argued that the examination carried out in the context of such a decision “does not entail the initiation of criminal proceedings by the executing State against the person whose surrender is requested and does not involve an assessment of the merits of the case” (para 94), since such a decision is intended solely to enable the sentence handed down in the issuing State to be enforced in the executing State
Conclusion ■ The Court concluded that:
- The refusal by the executing judicial authority, based on the ground for optional non-execution provided for in Article 4(6) of FD 2002/584, and the assumption of responsibility for the enforcement of that sentence, requires the issuing State’s consent, in line with FD 2008/909;
- If the executing judicial authority has not complied with FD 2008/909 conditions and the procedures, the issuing State retains the right to enforce that sentence and therefore to maintain the EAW;
- The decision of the executing State to refuse to surrender the requested person on the basis of Article 4(6) of FD 2002/584, and to recognise the sentencing judgment and to order the enforcement of that sentence on its territory is not covered by the concept of ‘finally judged … in respect of the same acts’, within the meaning of that Article 3 (2) of that FD.
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