(Suspected) terrorists
II. RELEVANT DOMESTIC LAW AND PRACTICE 80. 1. Code of Criminal Procedure Article D. 270 “ Save in the circumstances set out in Articles D. 136 to D. 147, prison staff must at all times be able to verify a prisoner ’ s presence. At night it must be possible to light cells when necessary. Cells should be entered only for good reason or in the event of imminent danger. In all cases, intervention must be by at least two staff members and an officer, if one is on night duty. ” Article D. 272 “ Rounds shall be made after lights out and during the night at set times to be changed daily by the senior custody officer, under the authority of the prison governor. ” Article D. 283-1 [ The words in italic were added or amended by the decrees of 1996 and 1998: Decree no. 96-287 of 2 April 1996, Article 4, Official Gazette of 5 April 1996, and Decree no. 98-1099 of 8 December 1998, Articles 65 and 190, Official Gazette of 9 December 1998. ] “ Any prisoner in a communal establishment or unit may be placed in solitary confinement at his or her request or as a precautionary or security measure. Orders for prisoners to be placed in solitary confinement shall be made by the prison governor, who shall inform the regional director and the judge responsible for the execution of sentences without delay. The prison governor shall also report to the Sentence Enforcement Board at the first meeting following the prisoner ’ s confinement or objection to a request for his or her confinement. The prisoner may, either personally or through counsel, send any observations he or she has on the decision to the judge responsible for the execution of sentences. The medical team shall be given a list of the prisoners in solitary confinement every day. Prisoners in solitary confinement will receive a medical examination in accordance with Article D. 381. If the doctor considers it appropriate in view of the prisoner ’ s health, he or she shall give an opinion on whether solitary confinement should cease. Solitary confinement may only exceed three months if a new report has been made to the Sentence Enforcement Board and the regional director so decides. Solitary confinement may only exceed one year from the date of the initial decision if the Minister of Justice so decides on the basis of a reasoned report by the regional director after the regional director has obtained the opinions of the Sentence Enforcement Board and the prison doctor. The prison governor shall keep a solitary-confinement register for consultation by the administrative and judicial authorities on supervisory visits and inspections. ” Article D. 283-2 [ Decree no. 96-287 of 2 April 1996, Article 4, Official Gazette of 5 April 1996, and Decree no. 98-1099 of 8 December 1998, Article 190, Official Gazette of 9 December 1998 ] “ Solitary confinement shall not constitute a disciplinary measure. Prisoners in solitary confinement shall be subject to the ordinary prison regime. ” 81. 2. Circulars Extracts from the Circular of 8 December 1998 implementing the decree amending the Code of Criminal Procedure “ 4. Solitary confinement as a precautionary or security measure Orders for solitary confinement as a precautionary or security measure are made by the prison governor at the prisoner ’ s request or on the governor ’ s own initiative. Since the governor has sole power to order solitary confinement, he or she will need to take particular care in setting out the reasons. 4.1. The need to state reasons Since the Conseil d ’ Etat ’ s Marie judgment of 17 February 1995, the administrative courts have assumed jurisdiction to review the lawfulness of disciplinary decisions ‘ giving cause for complaint ’. Judicial review has not yet been extended to decisions to place a prisoner in solitary confinement, which continue to be regarded in the most recent decisions as ‘ internal administrative measures ’ that are not amenable to review. The courts consider on the basis of Article D. 283-2 that ‘ solitary confinement does not make conditions of detention worse and is not liable to affect the legal position of the person so held ’ ( Conseil d ’ Etat, 28 February 1996, Fauqueux, and Conseil d ’ Etat, 22 September 1997, Trébutien ). 4.2. Nature of the reasons It is not sufficient simply to repeat the succinct ‘ as a precautionary or security measure ’ formula used in Article D. 283-1. ... Orders for solitary confinement as a precautionary or security measure must be based on genuine grounds and objective concordant evidence of a risk of the prisoner causing or being exposed to serious harm. The reasons must state whether the measure has been taken to avoid the risk of an escape, violence or coercion, concerted action liable to disrupt the prison community, connivance or conspiracy, or to protect the life or physical integrity of individual prisoners or of the person in solitary confinement. 4.3. Invalid reasons An order for solitary confinement cannot be made solely for the following reasons. 4.3.1. Nature of the offence The seriousness of the offence for which the person concerned is being held and the nature of the offence of which he or she is accused cannot by themselves justify solitary confinement. ... THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 86. The applicant complained, firstly, that his prolonged solitary confinement from 15 August 1994 to 17 October 2002 and from 18 March 2004 to 6 January 2006 constituted inhuman and degrading treatment and had therefore violated Article 3 of the Convention. Article 3 provides: “ No one shall be subjected to torture or to inhuman or degrading treatment or punishment. ” A. The Chamber judgment 87. The Chamber held that there had been no violation of Article 3 of the Convention. It found that the applicant had not been kept in complete sensory isolation or total social isolation. Having regard in particular to the applicant ’ s character and the exceptional danger he posed, it further found that the conditions in which he was being held and the length of time he had spent in solitary confinement had not reached the minimum level of severity necessary to constitute inhuman treatment within the meaning of Article 3 of the Convention. B. The parties ’ submissions 1. The applicant 88. The applicant contested the conclusion that had been reached by the Chamber. He submitted that the Chamber had been wrong to accept, without any prima facie evidence, the Government ’ s claim that there was a danger he would engage in proselytism or plan an escape. In his submission, it could not be maintained that solitary confinement had made such conduct impossible, just as it was impossible to draw any conclusion from the period in which he had ceased to be in solitary confinement. 89. He also considered that the Chamber should not have referred to his “ character ” or “ exceptional dangerousness ” in the absence of any concrete evidence from the Government to back up the “ abstract ” profile that had systematically been relied on in all the decisions to keep him in solitary confinement. Likewise, the reference to a possible ascendancy over the other prisoners showed that the reasons that had been given for keeping him in solitary confinement were fictitious. 90. In his submission, the systematic renewal of his solitary confinement had resulted in its continuation for a period that did not conform with the CPT ’ s recommendations or the undertakings that had been given by the Government after the CPT ’ s visit in 1996. Furthermore, he had never been convicted of a terrorist offence and was entitled to the presumption of innocence on that point, in accordance with Article 6 § 2 of the Convention. 91. As regards the conditions in which he was detained, he said that the strict ban on his communicating with other people, including prison warders, had resulted in his total social isolation. He had been refused permission to have French lessons, even on an individual basis, and none of his family had been officially informed of his imprisonment or his whereabouts. He alleged that the investigating file showed that it was the French authorities ’ intention to arrest any member of his family who travelled to France. As to the visits from the clergyman, the applicant said that initially they had been allowed only occasionally; subsequently, however, he had been permitted visits approximately once a month. He pointed out that visits by diplomatic representatives were a legal entitlement and that the Venezuelan authorities had not been informed of his situation until a late stage. With regard to sanitary conditions, the applicant said that he took showers at the same intervals as other prisoners and had not requested a special regime. He had been forced to stop going to the cardio -training room after being provoked and assaulted, although he did not identify those responsible. 92. The visits he had received from his lawyers were not social visits, but an indefeasible means of exercising his defence rights. He said that the Chamber had been wrong to accept that the visits had reduced his isolation and added that there had been numerous instances of delay in his lawyers ’ being granted permission to visit him. Arguing that the Government ’ s production of the list of visits of just one of his lawyers was misrepresentative, he furnished a list of all 58 lawyers and of the more than 860 visits they had made between 16 August 1994 and 29 April 2002. The visits from his lawyers had only been made with any frequency during his stay in La Santé Prison in Paris. On his transfer to the other prisons, such visits had become far less frequent because of the distance involved. Since October 2002, he had been receiving visits on a weekly basis. 93. The applicant further pointed out that, although the circular of 8 December 1998 to which the Chamber had referred in its judgment provided that a doctor ’ s opinion should be obtained prior to each extension, the Government had not produced evidence to show that the necessary medical examination had taken place. 94. He added that, in saying that the conditions in which he was detained were dictated by the layout of La Santé, the Government had sought to suggest that it would have been more appropriate to hold him in a maximum security prison, although these were all at some distance from Paris. 95. The applicant added that his excellent mental and physical health was due to his strength of character and the efforts he had made to keep his mind active and to retain mental balance. The adverse physical effects had, however, taken the form of broken sleep cycles as a result of his being noisily awoken by warders at hourly intervals from midnight to 6 a.m. throughout his stay in solitary confinement. He had also suffered from recurring respiratory and skin allergies as a result of the prison conditions. 96. His lawyer pointed out that it had been discovered in January 2004 that he was suffering from diabetes, a condition he had not previously had. She also said that he had lost 20 kilograms between March and December 2004. 2. The Government 97. The Government invited the Grand Chamber to endorse the Chamber ’ s finding that keeping the applicant in solitary confinement did not contravene Article 3. 98. Firstly, the applicant ’ s prison regime was wholly exceptional and dictated by the fact that, as a unique figure known internationally for acts of terrorism, there was a danger he would cause serious disruption within the prison population by engaging in proselytism, or even planning an escape. 99. In any event, the regime for prisoners in solitary confinement at La Santé Prison was strictly aligned to the rules applicable to ordinary prisoners, the only restrictions being those entailed by the fact that prisoners in the segregation unit had no possibility of meeting one another or of being in the same room together. 100. Referring to the facts as established (see paragraphs 11 and 12 above), the Government submitted that the physical conditions of the applicant ’ s detention complied with Article 3 of the Convention. 101. With regard to visits, the Government explained that the applicant had been a remand prisoner until 30 January 2000 and that by virtue of Article D. 64 of the Code of Criminal Procedure visits could only be authorised by the judge in charge of the investigation. Once the applicant ’ s conviction became final on 30 January 2000 the power to authorise visits had been transferred to the prison governor. 102. The applicant ’ s family, who did not reside in France, had never made contact. Furthermore, the applicant was allowed to see a priest – subject to one being available – whenever he wished, and received regular visits from consular authorities, in particular the Venezuelan Ambassador ’ s representative. 103. The Government added that the applicant had had very frequent meetings with his lawyer, who had become his fiancée and later his wife under Islamic law, as she had visited him more than 6 4 0 times in four years and ten months (see paragraph 14 above). They added that visits from lawyers took place in special conference rooms without any barrier between the prisoner and his or her lawyer. Lastly, although the applicant had been refused access to a communal class to learn French, he had been offered individual lessons, which he had declined. 104. The Government pointed out that by virtue of the Law of 18 January 1994 responsibility for the organisation and provision of health care for prisoners had been transferred to the public health service and social welfare protection had been made available to all prisoners. 105. In addition to any consultations requested by the prisoner or prison staff, medical care included mandatory check-ups (for new arrivals in a prison or for prisoners in the disciplinary unit). Prisoners in solitary confinement were systematically seen by a doctor twice a week. Relations between prisoners and doctors were covered by medical confidentiality. Accordingly, the medical information the Government had supplied was non-confidential information which the medical team responsible for the applicant ’ s health had communicated to the French authorities. 106. From the strictly somatic standpoint, the applicant had attended the Outpatient Consultation and Treatment Unit ( “the OCTU ” ) for specialist dental and ophthalmologic care. He had never complained of impaired eyesight as a result of his solitary confinement. From the psychiatric standpoint, the medical team had at no stage during the eight years the applicant had been held in solitary confinement mentioned any disorder, while the applicant had said that he was perfectly sane. 107. It was clear from the medical certificates that were issued regularly on each renewal of the solitary confinement that the doctors had at no stage found any contraindication to the measure. 108. The vast majority of the certificates drawn up between August 1994 and July 2000 had expressly stated that the applicant ’ s health was compatible with his continued confinement. In many instances, the certificates had been signed by different doctors who would necessarily have examined the applicant with a fresh pair of eyes. Lastly, the certificate of 13 July 2000 had even added that the applicant “ is in quite astounding physical and mental condition after six years in solitary confinement ”. 109. With regard to the period from July 2000 to September 2002, the Government did not deny that some of the certificates had referred to the problem of the possible physical and mental consequences of prolonged solitary confinement. However, the certificates did not state that the applicant had suffered any definite, actual harm as a result of his solitary confinement. The certificate of 20 September 2001 said that the applicant ’ s physical and mental condition was entirely reasonable after seven years in solitary confinement and in a later certificate dated 29 July 2002 the same practitioner stated that the applicant was in excellent somatic health. He also said that the applicant had refused any psychological counselling from the Regional Medical and Psychological Service (“the RMPS”), which in the Government ’ s submission showed that he had not felt the need for any counselling. 110. The Government further denied that the applicant had been woken at hourly intervals throughout the night, as he alleged. They referred to Articles D. 270 and D. 272 of the Code of Criminal Procedure, which governed prison rounds at night, and said that the applicant had been subjected to the same surveillance and checks as other prisoners in solitary confinement, as no special instructions had been issued in his case. In particular, when performing their night rounds, warders were not authorised to open cells unless there was good reason or imminent danger. The applicant could not, therefore, assert that he had been noisily woken at hourly intervals throughout the night on a regular basis. At most, it was possible that warders had shone a light into his cell briefly to check that he was there and what he was doing. Further, the applicant had never complained to a domestic authority about night-time surveillance, whereas he had complained on a number of occasions during his spell in solitary confinement about the conditions in which he was being held. 111. The Government concluded from all these factors that the applicant ’ s health did not appear to have been affected by solitary confinement and that the conditions in which the applicant was being held had not attained the minimum level of severity required to fall foul of Article 3 of the Convention, despite the CPT ’ s finding that the general conditions in which prisoners in solitary confinement were held in France were not entirely satisfactory. C. The Court ’ s assessment 112. The Court must first determine the period of detention to be taken into consideration when examining the complaint under Article 3. It points out that the “ case ” referred to the Grand Chamber embraces in principle all aspects of the application previously examined by the Chamber in its judgment, the scope of its jurisdiction in the “ case ” being limited only by the Chamber ’ s decision on admissibility (see, mutatis mutandis, K. and T. v. Finland [GC], no. 25702/94, §§ 139- 41, ECHR 2001-VII; Kingsley v. the United Kingdom [GC], no. 35605/97, § 34, ECHR 2002-IV; Göç v. Turkey [GC], no. 36590/97, §§ 35-37, ECHR 2002-V; Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003-II; and Öcalan v. Turkey [ GC], no. 46221/99, ECHR 2005 ‑ IV ). More specifically, within the compass thus delimited by the decision on the admissibility of the decision, the Court may deal with any issue of fact or law that arises during the proceedings before it (see, among many other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I; Chahal v. the United Kingdom, 15 November 1996, § 86, Reports 1996 ‑ V; and Ahmed v. Austria, 17 December 1996, § 43, Reports 1996 ‑ VI). 113. In the present case, the applicant ’ s solitary confinement was interrupted between 17 October 2002 and 18 March 2004 when he was detained in Saint-Maur Prison, near Châteauroux, under normal prison conditions. He was then held in solitary confinement successively in Fresnes, Fleury-Mérogis and La Santé. Since 6 January 2006 he has been in Clairvaux Prison, where normal conditions have been restored. The parties have not provided any information on the conditions in which the applicant was kept in solitary confinement in the various prisons to which he was transferred during the period from March 2004 to January 2006. Nor has the applicant ever challenged his solitary confinement on the merits since that became possible on 30 July 2003 (see paragraph 82 above). In particular, he did not make use of any remedy on the merits during this latter period ( March 2004 to January 2006 ) although he could have done so from the moment he returned to solitary confinement. The Court will return to this point when it examines the complaint under Article 13. 114. In these specific circumstances, the Grand Chamber, like the Chamber, considers it appropriate to restrict its examination to the conditions in which the applicant was held from 15 August 1994 to 17 October 2002 ( contrast Öcalan, cited above, § 190). 1. General principles 115. Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. 116. In the modern world, States face very real difficulties in protecting their populations from terrorist violence. However, unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999- V; and Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports 1998-VIII). The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (see Chahal, cited above, § 79). The nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 ( see Indelicato v. Italy, no. 31143/96, § 30, 18 October 2001 ). 117. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, for instance, Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25). In assessing the evidence on which to base the decision whether there has been a violation of Article 3, the Court adopts the standard of proof “ beyond reasonable doubt ”. However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. 118. The Court has considered treatment to be “ inhuman ” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be “ degrading ” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000 ‑ XI). In considering whether a punishment or treatment is “ degrading ” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see, among other authorities, Raninen v. Finland, 16 December 1997, § 55, Reports 1997-VIII). However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 (see, among other authorities, Peers v. Greece, no. 28524/95, § 74, ECHR 2001 ‑ III). 119. In order for a punishment or treatment associated with it to be “ inhuman ” or “ degrading ”, the suffering or humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment (see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX; Indelicato, cited above, § 32; Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, § 428, ECHR 2004 ‑ VII; and Lorsé and Others v. the Netherlands, no. 52750/99, § 62, 4 February 2003). In that connection, the Court notes that measures depriving a person of his liberty may often involve such an element. Nevertheless, Article 3 requires the State to ensure that prisoners are detained in conditions that are compatible with respect for their human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured (see Kudła, cited above, § § 92- 94, and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 200 2 - VI ). The Court would add that the measures taken must also be necessary to attain the legitimate aim pursued. Further, when assessing conditions of detention, account has to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant ( see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II). 120. The applicant ’ s allegations in the present case specifically concern the length of time spent in solitary confinement. The European Commission of Human Rights expressed the following opinion on this particular aspect of detention in Ensslin, Baader and Raspe v. Germany (nos. 7572/76, 758 6/76 and 7587/76, Commission decision of 8 July 1978, Decisions and Reports ( DR ) 14, p. 64) : “ The Commission has already been confronted with a number of such cases of isolation (cf. Decisions on Applications No. 1392/62 v. FRG, Coll. 17, p. 1; No. 5006/71 v. UK, Coll. 39, p. 91; No. 2749/66 v. UK, Yearbook X, p. 382; No. 6038/73 v. FRG, Coll. 44, p. 155; No. 4448/70 “ Second Greek Case ” Coll. 34, p. 70). It has stated that prolonged solitary confinement is undesirable, especially where the person is detained on remand (cf. Decision on Application No. 6038/73 v. FRG, Coll. 44, p. 151). However, in assessing whether such a measure may fall within the ambit of Article 3 of the Convention in a given case, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned. Complete sensory isolation coupled with complete social isolation can no doubt ultimately destroy the personality; thus it constitutes a form of inhuman treatment which cannot be justified by the requirements of security, the prohibition on torture and inhuman treatment contained in Article 3 being absolute in character (cf. the Report of the Commission on Application No. 5310/71, Ireland v. the United Kingdom; Opinion, p. 379). ” 121. In Kröcher and Möller v. Switzerland (no. 8463/78, Commission ’ s report of 16 December 1982, DR 34, p. 24), the Commission also considered the length of the solitary confinement, which lasted for approximately ten and a half months. It observed: “ With regard to the duration of their detention on remand and detention under security conditions, the Commission finds that each of these periods was fairly brief considering the circumstances of the case. As to the special isolation measures to which the applicants were subjected, neither the duration nor the severity of these exceeded the legitimate requirements of security. In any case, the applicants ’ exclusion from the prison community was not prolonged excessively. ” 122. The Commission reiterated in a later case that prolonged solitary confinement was undesirable ( see Natoli v. Italy, no. 26161/95, Commission decision of 18 May 1998, unreported ). 123. Similarly, the Court has for its part established the circumstances in which the solitary confinement of even a dangerous prisoner will constitute inhuman or degrading treatment (or even torture in certain instances). It has thus observed: “ ... complete sensory isolation, coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason. On the other hand, the prohibition of contacts with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment. ” ( see Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999-V; Öcalan, cited above, § 191; and Ilaşcu and Others, cited above, § 432 ) 124. Similarly, in Ilaşcu and Others, the Court stated: “ As regards the applicant ’ s conditions of detention while on death row, the Court notes that Mr Ilaşcu was detained for eight years, from 1993 until his release in May 2001, in very strict isolation: he had no contact with other prisoners, no news from the outside – since he was not permitted to send or receive mail – and no right to contact his lawyer or receive regular visits from his family. His cell was unheated, even in severe winter conditions, and had no natural light source or ventilation. The evidence shows that Mr Ilaşcu was also deprived of food as a punishment and that in any event, given the restrictions on receiving parcels, even the food he received from outside was often unfit for consumption. The applicant could take showers only very rarely, often having to wait several months between one and the next. On this subject the Court refers to the conclusions in the report produced by the CPT following its visit to Transdniestria in 2000 ..., in which it described isolation for so many years as indefensible. The applicant ’ s conditions of detention had deleterious effects on his health, which deteriorated in the course of the many years he spent in prison. Thus, he did not receive proper care, having been deprived of regular medical examinations and treatment ... and dietetically appropriate meals. In addition, owing to the restrictions on receiving parcels, he could not be sent medicines and food to improve his health. ” ( see Ilaşcu and Others, cited above, § 43 8; contrast Rohde v. Denmark, no. 69332/01, § 97, 21 July 2005 ) 2. Application of the principles to the present case 125. As to the present case, the Court accepts that the applicant ’ s detention posed serious problems for the French authorities. The applicant, who was implicated in various terrorist attacks that took place in the 1970s, was at the time considered one of the world ’ s most dangerous terrorists. It is to be noted on this point that on the many occasions he has since had to state his views (in his book, newspaper articles and interviews) he has never disowned or expressed remorse for his acts. Accordingly, it is understandable that the authorities should have considered it necessary to combine his detention with extraordinary security measures. (a) Conditions in which the applicant was held (i) Physical conditions 126. The physical conditions in which the applicant was held must be taken into account when examining the nature and duration of his solitary confinement. 127. The Court notes that the cell which the applicant occupied when in solitary confinement at La Santé Prison was large enough to accommodate a prisoner, was furnished with a bed, table and chair, and had sanitary facilities and a window giving natural light. 128. In addition, the applicant had books, newspapers, a reading light and a television set at his disposal. He had access to the exercise yard two hours a day and to a cardio -training room one hour a day. 129. These conditions of detention contrast with those that were examined by the Court in the case of Mathew, in which the Court found a violation of Article 3. The applicant in that case had been detained in conditions similar to solitary confinement for more than two years in a cell on the last ( second ) floor of the prison. For seven or eight months, a large hole in the ceiling allowed rain to enter. In addition, the fact that the cell was directly under the roof exposed the applicant to the tropical heat. Lastly, since he had difficulty going up or down stairs, he was frequently prevented from going to the exercise yard or even outside ( see Mathew v. the Netherlands, no. 24919/03, ECHR 2005 -IX ). 130. In the present case, the Court finds that the physical conditions in which the applicant was detained were proper and complied with the European Prison Rules adopted by the Committee of Ministers on 11 January 2006. These conditions were also considered to be “ globally acceptable ” by the CPT (see its report on the visit from 14 to 26 May 2000, cited at paragraph 83 above). Accordingly, no violation of Article 3 can be found on this account. ( ii ) Nature of the applicant ’ s solitary confinement 131. In the present case, the applicant received twice- weekly visits from a doctor, a once - monthly visit from a priest and very frequent visits from one or more of his 58 lawyers, including more than 640 visits over a period of four years and ten months from his representative in the proceedings before the Court, now his wife under Islamic law, and more than 860 visits in seven years and eight months from his other lawyers (see paragraphs 14 and 92 above). Furthermore, the applicant ’ s family, who are not subject to any restrictions on visiting rights, have never requested permission to visit and the only two requests which have been refused came from journalists. Nor has the applicant provided any evidence in support of his allegations that members of his family risk arrest if they set foot in France. As to the allegation that the family has never been officially informed of the applicant ’ s imprisonment or place of detention, the Court notes that it is not certain that the French authorities had the names and addresses of his family members and it considers that the consular authorities, the applicant himself and his lawyers were in any event perfectly capable of informing them themselves. 132. The Court notes that the conditions of solitary confinement in which the applicant was held were not as harsh as those it has had occasion to examine in connection with other applications, such as in the cases of Messina (no. 2) and Argenti, in which the applicants, who had been in solitary confinement for four and a half years and twelve years respectively, were subject to a ban on communicating with third parties, a restriction on receiving visits – behind a glass screen – from members of their families (with a maximum of a one-hour visit per month), and bans on receiving or sending money over a certain amount, on receiving parcels from outside containing anything other than linen, on buying groceries that required cooking and on spending more than two hours outdoors (see Messina (no. 2), cited above, and Argenti v. Italy, no. 56317/00, § 7, 10 November 2005). 133. Likewise, in the case of Öcalan, in which the isolation was stricter, the Court noted that the applicant, who had been the sole inmate of an island prison for six years when the judgment was adopted, had no access to a television and that his lawyers, who were only allowed to visit him once a week, had often been prevented from doing so by adverse weather conditions that meant that the boat was unable to make the crossing. It found that in the circumstances of the case the conditions of detention were not incompatible with Article 3 of the Convention ( see Öcalan, cited above, in particular §§ 190- 96 ). 134. The Court considers that the applicant ’ s conditions are closer to those it examined in Rohde in which it held that there had been no violation of Article 3 of the Convention. The applicant in that case was held in solitary confinement for eleven and a half months. He had access to television and newspapers, was excluded from activities with other prisoners, had language lessons, was able to meet the prison chaplain and received a visit once a week from his lawyer and some members of his family ( Rohde, cited above, § 97). 135. The Court accordingly concludes that the applicant cannot be considered to have been in complete sensory isolation or total social isolation. His isolation was partial and relative. (b) Duration of the solitary confinement 136. It is true that the applicant ’ s situation was far removed from that of the applicants in the aforementioned case of Ilaşcu and Others and that he was not subjected to complete sensory isolation or to total social isolation, but to relative social isolation (see also on this point, Messina (no. 2), cited above). However, the Court cannot but note with concern that in the present case he was held in solitary confinement from 15 August 1994 to 17 October 2002, a period of eight years and two months. In view of the length of that period, a rigorous examination is called for by the Court to determine whether it was justified, whether the measures taken were necessary and proportionate compared to the available alternatives, what safeguards were afforded the applicant and what measures were taken by the authorities to ensure that the applicant ’ s physical and mental condition was compatible with his continued solitary confinement. 137. Reasons for keeping a prisoner in solitary confinement are required by the circular of 8 December 1998 which refers to “ genuine grounds ” and “ objective concordant evidence of a risk of the prisoner causing ... serious harm ”. In the instant case, the reasons given for renewing the measure every three months were his dangerousness, the need to preserve order and security in the prison and the risk of his escaping from a prison in which general security measures were less extensive than in a high- security prison. The circular also provides that solitary confinement should only continue for more than a year in exceptional circumstances. However, regrettably there is no upper limit on the duration of solitary confinement. 138. It is true that a prisoner ’ s segregation from the prison community does not in itself amount to inhuman treatment. In many States Parties to the Convention more stringent security measures exist for dangerous prisoners. These arrangements, which are intended to prevent the risk of escape, attack or disturbance of the prison community, are based on separation of the prison community together with tighter controls (see Kröcher and Möller, cited above ). 139. However, in order to avoid any risk of arbitrariness, substantive reasons must be given when a protracted period of solitary confinement is extended. The decision should thus make it possible to establish that the authorities have carried out a reassessment that takes into account any changes in the prisoner ’ s circumstances, situation or behaviour. The statement of reasons will need to be increasingly detailed and compelling the more time goes by. Furthermore, such measures, which are a form of “ imprisonment within the prison ”, should be resorted to only exceptionally and after every precaution has been taken, as specified in paragraph 53.1 of the Prison Rules adopted by the Committee of Ministers on 11 January 2006. A system of regular monitoring of the prisoner ’ s physical and mental condition should also be set up in order to ensure its compatibility with continued solitary confinement. 140. The Court notes that the applicant has received very regular visits from doctors, in accordance with the instructions set out in the circular of 8 December 1998. 141. While it is true that, after 13 July 2000 the doctors no longer sanctioned his solitary confinement, none of the medical certificates issued on the renewals of the applicant ’ s solitary confinement up to October 2002 expressly stated that his physical or mental health had been affected, or expressly requested a psychiatric report. 142. In addition, on 29 July 2002 the doctor in charge of the OCTU at La Santé Prison noted in his report on the treatment the applicant had been receiving that the applicant had refused “ any psychological help from the RMPS”. 143. Likewise, in his findings following an examination of the applicant on 17 October 2002 on his arrival at Saint-Maur Prison, the Indre Health Inspector said that, from the psychiatric standpoint, the applicant had been seen by a psychiatrist from the RMPS as part of the standard induction procedure. No follow-up treatment had been prescribed at the time and the applicant had not asked to see a psychiatrist since. The applicant had been examined on 26 August 2003, but no follow-up to that appointment had been recommended. 144. The Court notes in this connection that the applicant refused the psychological counselling he was offered (see paragraph 70 above) and has not alleged that the treatment he received for his diabetes was inappropriate. Nor has he shown that his prolonged solitary confinement has led to any deterioration in his health, whether physical or mental. Furthermore, the applicant himself stated in his observations in reply that he was in excellent mental and physical health (see paragraph 95 above). 145. The Court nevertheless wishes to emphasise that solitary confinement, even in cases entailing only relative isolation, cannot be imposed on a prisoner indefinitely. Moreover, it is essential that the prisoner should be able to have an independent judicial authority review the merits of and reasons for a prolonged measure of solitary confinement. In the instant case, that only became possible in July 2003. The Court will return to this point when it examines the complaint made under Article 13. It also refers in this connection to the conclusions of the CPT and of the Human Rights Commissioner of the Council of Europe (see paragraphs 83 and 85 above). 146. It would also be desirable for alternative solutions to solitary confinement to be sought for persons considered dangerous and for whom detention in an ordinary prison under the ordinary regime is considered inappropriate. 147. The Court notes with interest on this point that the authorities twice transferred the applicant to prisons in which he was held in normal conditions. It emerges from what the Government have said that it was as a result of an interview which the applicant gave over the telephone to a television programme in which he refused among other things to express any remorse to the victims of his crimes (he put the number of dead at between 1,500 and 2,000), that he was returned to solitary confinement in a different prison. The authorities do not, therefore, appear to have sought to humiliate or debase him by systematically prolonging his solitary confinement, but to have been looking for a solution adapted to his character and the danger he posed. 148. The Court notes that when the applicant was being held in normal conditions in Saint-Maur Prison, his lawyer sent a letter to the Registry of the Court in which she complained of “ dangerous company, particularly in the form of drug addicts, alcoholics, and sexual offenders who are unable to control their behaviour ” and alleged a violation of human rights. Furthermore, the applicant complained during that period of being too far away from Paris, which, he said, made visits from his lawyers more difficult, less frequent and more costly and inevitably caused another form of isolation. 149. Lastly, the Government ’ s concerns that the applicant might use communications either inside the prison or on the outside to re-establish contact with members of his terrorist cell, to seek to proselytise other prisoners or to prepare an escape also have to be taken into account. These concerns cannot be said to have been without basis or unreasonable (see on this point, Messina (no. 2), in which the Court noted, before declaring the complaints about the conditions of detention inadmissible, “ the applicant was placed under the special regime because of the very serious offences of which he [was] convicted ”, a statement that is equally applicable to the applicant in the present case; see also Gallico v. Italy, no. 53723/00, 28 June 2005 ). 150. The Court shares the CPT ’ s concerns about the possible long-term effects of the applicant ’ s isolation. It nevertheless considers that, having regard to the physical conditions of the applicant ’ s detention, the fact that his isolation is “ relative ”, the authorities ’ willingness to hold him under the ordinary regime, his character and the danger he poses, the conditions in which the applicant was being held during the period under consideration have not reached the minimum level of severity necessary to constitute inhuman treatment within the meaning of Article 3 of the Convention. Despite the very special circumstances obtaining in the present case, the Court is concerned by the particularly lengthy period the applicant has spent in solitary confinement and has duly noted that since 5 January 2006 he has been held under the ordinary prison regime (see paragraph 76 above), a situation which, in the Court ’ s view, should not in principle be changed in the future. Overall, having regard to all the foregoing considerations, it finds that there has been no violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 151. The applicant complained that he had not had a remedy available to challenge his continued solitary confinement. He relied on Article 13, which provides: “ Everyone whose rights and freedoms as set forth in th[e] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. ” A. The Chamber judgment 152. The Chamber found a violation of Article 13 of the Convention. It noted in particular that prior to the Conseil d ’ Etat ’ s judgment of 30 July 2003, prisoners in solitary confinement did not have any remedy available to challenge the original measure or any renewal of it. B. The parties ’ submissions 153. The applicant invited the Grand Chamber to endorse the Chamber ’ s finding of a violation. He also alleged that the authorities had not followed the procedure laid down by Article D. 283-1 of the Code of Criminal Procedure for prolonging solitary confinement. He added that on a number of occasions he had been forced to complain because he not been given the requisite medical check-up before the decision to prolong his solitary confinement was taken. Lastly, he said that the proposals and decisions to prolong the measure were almost systematically based on the nature of the offences for which he was in prison and that the authorities had been unable to provide the genuine grounds or evidence of objective and concordant incidents required by the applicable provisions. 154. The Government noted that in a judgment of 30 July 2003 the Conseil d ’ Etat had ruled that a decision to place a prisoner in solitary confinement could be the subject of judicial review owing to the effect such decisions had on the conditions of detention. That judgment was part of a continuing process which had seen the scope of internal administrative measures increasingly circumscribed. 155. They added that the applicant had to date challenged only one order renewing his solitary confinement, that being the decision of 17 February 2006. Even then he had only contested the formal validity of the measure, not the underlying reasons. Consequently, he had never sought to challenge the measure in the administrative courts on the merits by arguing that it violated Article 3 of the Convention. The Paris Administrative Court, which gave its judgment on 15 December 2005, had set the decision aside on the ground that the regional director of the Prison Service had omitted to obtain the opinion of the Sentence Enforcement Board, as he was required to do by Article D. 283 ‑ 1 of the Code of Criminal Procedure, before lodging his report with the Minister of Justice. 156. The Government said in conclusion that it left it to the Court ’ s discretion to decide whether or not an effective remedy had existed prior to the Conseil d ’ Etat ’ s decision of 30 July 2003. C. The Court ’ s assessment 157. As the Court has held on many occasions, Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “ arguable complaint ” under the Convention and to grant appropriate relief (see, among many other authorities, Kudła, cited above, § 157). 158. The scope of the Contracting States ’ obligations under Article 13 varies depending on the nature of the applicant ’ s complaint. However, the remedy must be “ effective ” in practice as well as in law (see, among other authorities, İlhan v. Turkey [GC], no. 22277/93, § 97, ECHR 2000-VII). 159. The “ effectiveness ” of a “ remedy ” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “ authority ” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees it affords are relevant in determining whether the remedy before it is effective. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see, among many other authorities, Silver and Others v. the United Kingdom, 25 March 1983, § 113, Series A no. 61, and Chahal, cited above, § 145). 160. The Court must now determine whether it was possible under French law for the applicant to complain about the decisions to prolong his solitary confinement and about any procedural irregularities, and whether the remedies were “ effective ” in the sense that they could have prevented the alleged violation occurring or continuing or could have afforded the applicant appropriate redress for any violation that had already occurred. 161. The Government accepted that, under the settled case-law of the Conseil d ’ Etat prior to 30 July 2003, decisions to place a prisoner in solitary confinement were equated to internal administrative measures in respect of which no appeal lay to the administrative courts. 162. The applicant lodged an appeal with the Administrative Court on 14 September 1996. However, this was dismissed in a judgment of 25 November 1998 on the ground that it was an internal measure that could not be referred to the administrative courts. 163. The Court notes on this point that the decision was consistent with the settled case-law of the Conseil d ’ Etat at the material time which the Government have themselves cited. 164. It was not until 30 July 2003 that the Conseil d ’ Etat changed its jurisprudence and ruled that an application for judicial review could be made in respect of decisions concerning solitary confinement and the decision quashed if appropriate. 165. The Court notes that the applicant has made only one application to the Administrative Court since the change in the case-law. Although he only challenged the lawfulness of the measure imposed on him on 17 February 2005, it is of the view that, having regard to the serious repercussions which solitary confinement has on the conditions of detention, an effective remedy before a judicial body is essential. The aforementioned change in the case-law, which would warrant being brought to the attention of a wider audience, did not in any event have retrospective effect and could not have any bearing on the applicant ’ s position. 166. The Court accordingly considers that in this case there has been a violation of Article 13 of the Convention on account of the lack of a remedy in domestic law that would have allowed the applicant to challenge the decisions to prolong his solitary confinement taken between 15 August 1994 and 17 October 2002. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 167. Article 41 of the Convention provides: “ If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. ” A. Damage 168. The applicant made no claim for compensation. B. Costs and expenses 169. The applicant ’ s lawyer submitted an invoice for the total cost of visiting the applicant between June 1997 and October 2002. This included the hourly rates for the visits, travel expenses and procedural disbursements. The invoice came to a total of 426,852.40 euros (EUR). The second lawyer who represented the applicant at the hearing produced a statement showing the cost of visits made to the applicant between 22 May 1998 and 7 October 2002 in the amount of EUR 87,308, comprising EUR 69,846.40 for the visits themselves and EUR 17,461.60 for travel and the costs of formalities. The first lawyer expressed regret that the Chamber should have refused that request without taking into account lawyers ’ fixed overheads and asked the Court to grant it. 170. The account for costs and expenses incurred in presenting the application to the Court came to EUR 41, 860, to which were to be added EUR 8 0 0 for travel and accommodation for the two lawyers for the hearing in Strasbourg. 171. The Government submitted that the applicant ’ s claims were unreasonable and referred to their previous submissions. 172. They pointed out, firstly, that he had provided no evidence to show that he had actually paid the costs and expenses. 173. They added that the amount sought in respect of the visits had been calculated for the period from 1997 to 2002, although the application had not been lodged until 20 July 2000. There was consequently no causal link between the work done on the application and the visits that had been made prior to that date. 174. The Government also pointed out that, in view of the considerable number of hours (1,830) that had been claimed for visits without any breakdown, it was impossible to distinguish between visits by Ms Coutant Peyre in her capacity as a lawyer and those she had made personally as the applicant ’ s partner. They concluded that that claim had to be dismissed. 175. As to the claim for costs and expenses, the Government submitted that it must necessarily include the costs of visits made in a professional capacity. Noting that this claim was not based on a verifiable calculation either, they said that accordingly it could not be upheld. In conclusion, the Government proposed a payment of EUR 6,000 to the applicant for his costs and expenses in the event of the Court finding a violation in the case. 176. The Court reiterates that if it finds that there has been a violation of the Convention, it may award the applicant not only the costs and expenses incurred before it, but also those incurred before the national courts for the prevention or redress of the violation (see, among other authorities, Hertel v. Switzerland, 25 August 1998, Reports 1998-VI, and Yvon v. France, no. 44962/98, ECHR 2003 ‑ V), provided they have been necessarily incurred, the requisite vouchers have been produced and they are reasonable as to quantum (see, among other authorities, Kress v. France [GC], no. 39594/98, ECHR 2001 ‑ VI). 177. The Court notes that no explanation or evidence has been provided in the present case in support of the claim for reimbursement of the costs of the visits. Accordingly, it cannot make any award under this head. 178. The Court notes that no details or vouchers whatsoever have been provided in support of the claim for the costs and expenses incurred in presenting the application to it. However, having regard to the complexity of the questions raised by the application and ruling on an equitable basis, it considers it reasonable to award the applicant EUR 10, 0 00 in respect of all his costs incurred in the proceedings before the Court. C. Default interest 179. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been no violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention on account of the length of time the applicant had spent in solitary confinement. While sharing the European Committee for the Prevention of Torture‘s concerns about the possible long-term effects of the applicant’s isolation, the Court nevertheless considered that, having regard in particular to his character and the danger he posed, the conditions in which the applicant was held during the period under consideration had not reached the minimum level of severity necessary to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention.  The Court further found in this case a violation of Article 13 (right to an effective remedy) of the Convention, on account of the lack of a remedy in French law that would have allowed the applicant to contest the decision to prolong his detention in solitary confinement.