Choudhary v Prosecutor at the Creteil Tgi, France [2020] EWHC 1966 (Admin)

“126. It follows that, when it has been conclusively established that a detainee disposed of less than 3 sq. m of floor surface in multi-occupancy accommodation, the starting point for the Court’s assessment is a strong presumption of a violation of Article 3. It then remains for the respondent Government to demonstrate convincingly that there were factors capable of adequately compensating for the scarce allocation of personal space. The cumulative effect of those conditions should inform the Court’s decision whether, in the circumstances, the presumption of a violation is rebutted or not. … 138. The strong presumption of a violation of Article 3 will normally be capable of being rebutted only if the following factors are cumulatively met: (1) the reductions in the required minimum personal space of 3 sq. m are short, occasional and minor (see paragraph 130 above): (2) such reductions are accompanied by sufficient freedom of movement outside the cell and adequate out-of-cell activities (see paragraph 133 above); (3) the applicant is confined in what is, when viewed generally, an appropriate detention facility, and there are no other aggravating aspects of the conditions of his or her detention (see paragraph 134 above). 139. In cases where a prison cell – measuring in the range of 3 to 4 sq. m of personal space per inmate – is at issue the space factor remains a weighty factor in the Court’s assessment of the adequacy of conditions of detention. In such instances a violation of Article 3 will be found if the space factor is coupled with other aspects of inappropriate physical conditions of detention related to, in particular, access to outdoor exercise, natural light or air, availability of ventilation, adequacy of room temperature, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements (see paragraph 106 above).”

“1. From one division to another, the cells are identical to a few details: 3.94m deep by 2.46m wide and 2.99m high, i.e. an area of 9.69m² and a volume of 28.93m²” “2 – the current situation, with three persons in a cell of 9.8 m², constitutes an assault on the dignity and is not acceptable” “3 – The cells are in principle individual, approximately 10 m². In these cells, once the size of the beds (three bunk beds), toilets and table has been deducted, three people must then live in a space of barely 6 m²” “4. These cells are only 10 m², once you deduct the bed space, the toilets and the table….”

“… smaller single cells (8 to 9m²) (excluding sanitary facilities) have space for one or two detainees, leaving a minimum of 4m² per person. As of 23 July 2018, the 386 larger single cells (10m²) accommodated three detainees, i.e. 3m² per person (excluding sanitary facilities).” 13. As for other “non-spatial” factors: “In Fresnes permanent eradication of bed bugs is a priority action, with regular ‘disinsectisation’ operations two or three times a week and whenever a specific report is made …”

“259. In the cases examined, the Court noted that the Government had produced information on the end of the applicants' detention or on the date of their end of sentence. On the other hand, it notes that the accuracy of the information communicated by the Government on the applicants' personal space is limited. These are sometimes non-existent, as is the case for detainees from Faa’a-Nuutania, Baie-Mahault and Nice. For others, they are incomplete because they do not always specify the area of the cells and do not indicate whether the sanitary annexes are included in these areas. Finally, the information is not always supported by a written document such as a co-ownership history. The Court noted these evidentiary shortcomings in the applications concerning the prisons of Ducos and Fresnes. In addition, the Court was unable to know precisely the area of the sanitary part of the cells, with the exception of those of the MA of Nîmes, which made it difficult to calculate the applicants' personal space when it had information on the total area of the cell. It then assumed that such a space was between 1 and 2m². … 260. In these circumstances, and while admitting the overcrowding situation in all the prisons concerned, the Court considers that the Government have not convincingly refuted the allegations made by the applicants of the CP of Ducos, Faa'a-Nuutania, Baie-Malhaut, Nice and Fresnes (as regards RM and AT for this last establishment) according to which they would have had less than 3 m² of personal space during their entire detention (paragraphs 29, 49, 59, 92 and 113 above). These allegations are further corroborated by relevant information from national authorities such as the CGLPL or from international bodies such as the CPT. … 299. Having regard to what it said in paragraph 260 above, and as regards the detention of RM and AT, the Court concludes that there is a strong presumption of violation of Article 3 of the Convention. This presumption cannot be called into question in the absence, in this case, of the first of the three cumulative factors challenging this rebuttal, namely periods of "short, occasional and minor" reduction in the applicants' personal space compared to at the minimum required. It follows that there is no need to examine the other factors (mutatis mutandis, Nikitin and others, cited above, § 184). 300. As regards A.B.A., the Court held that he had a personal space of approximately 4 m² (see paragraph 113 above). In their observations, the Government indicate that the personal space of A.B.A. is not less than 3 m² (see paragraph 250 above). In these circumstances, the Court considers that it must be held that the applicant had personal space of between 3 and 4 m² throughout his detention. The Government also indicate that the recreation and the possibility of playing sports are sufficient to consider that the threshold of gravity required by Article 3 of the Convention has not been reached. In view of the findings of the judge hearing the application for interim measures, the CGLPL and the CPT, which observe and describe the very degraded conditions of detention within the MA of Fresnes (see paragraphs 06, 108, 151 and 152 above), the Court does not share this point of view. It notes that it appears from their decisions and reports that the MA of Fresnes, obsolete because of its age and lack of renovation, is repeatedly confronted with the presence of pests, and in particular bedbugs in the beds of detainees, and that the latter suffer from the lack of light and humidity in the cells (idem). It also notes that if the length of the exercise walks in the prison courtyards is not disputed by the applicants, it is the condition of these places which is in question: in its emergency recommendations published in December 2016, the CGLPL indicated that the areas were cramped (twenty-five people in 45 m²) and lacked shelters and toilets and that the rats were moving around there en masse (see paragraph 106 above). The Court does have no information on the current state of these facilities but the description made by the applicants detained in Fresnes at the time of the introduction of their request in 2017 corresponds to that which was made by the CGLPL in 2016 (paragraph 106 above) and the finding of the domestic judge in 2018 who considered that the conditions under which the exercise walks take place are detrimental to the dignity of detained persons (see paragraph 109 above). In view of the above, the Court considers that the conditions of detention of A.B.A. amounted to degrading treatment within the meaning of Article 3 of the Convention.”