-40
that entail isolation (or de-facto isolation) and serious restrictions to their
rights. The ECtHR does not consider these special regimes as contrary to
Article 3 ECHR per se, but evaluates the conditions of detainees on a caseby-case basis. Even if it states that these kinds of security-driven regimes
should be used only exceptionally with all safeguards and precautions,
that mitigating measures should be in place and alternatives to isolation
should be found, the ECtHR still justifies harsh isolation when the detainee
is linked to organised crime, terrorism, and mafia-type organisations.124
Upon judging these cases, the ECtHR thoroughly checks whether the
State has made an evaluation of the specific personal circumstances of
the inmate (including the effects of the regime on mental health), and
whether it has balanced “the degree of the applicant’s relative isolation
on the one hand, and the degree of compensating measures on the other”.
Among the others, the analysis of compensating measures includes the
activities that the isolated inmate is allowed to carry out, the visits s/he
can receive, and the level of interaction with staff members.125 On the
side of procedural safeguards, detainees should have an effective remedy
at their disposal (ECtHR126). They should be able to appeal against their
placement in solitary confinement, there should be a mechanism of review
of the measure, and the penitentiary system should aim at their placement
in progressively less restrictive custody (SPT127). In several cases that
ended up in front of the ECtHR, there was no way to complain against
the measure. In others, only one magistrate in the country examined the
appeals, with the result that sometimes this was done once the measure
was over (explaining why the ECtHR found in several instances that Italy
had infringed the ECHR.128). As these special regimes involve the use of
solitary confinement, their imposition, continuation, and termination
124. European Court of Human Rights, Case of Horych v. Poland, §94.
European Court of Human Rights, Case of Ramirez Sanchez v. France, §146.
125. European Court of Human Rights, Case of Fjotolf HANSEN v Norway, Application no. 48852/17, 29
May 2018, §§148-152.
126. European Court of Human Rights, Case of Messina v. Italy (No. 2), Application no. 25498/94, September 2000.
127. Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report on the visit of the Subcommittee on Prevention of Torture and other cruel, inhuman or degrading treatment or punishment to Maldives, CAT/OP/MDV/1, 26 February 2009, §§197-198.
128. European Court of Human Rights, Case of Messina v. Italy (No. 2).
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents