issued by the Registrar of the Court

ECHR 202 (2011)

20.10.2011

A high-security prisoner suffers broken ribs while in detention

In today’s Chamber judgment in the case of Alboreo v. France (application

no. 51019/08), which is not final¹, the European Court of Human Rights held,

unanimously, that there had been:

A violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of

the European Convention on Human Rights concerning ill-treatment inflicted by the

special intervention forces.

A violation of Article 13 (right to an effective remedy) taken together with Article 3

of the European Convention on Human Rights, concerning the lack of an effective

remedy against security transfer measures.

Principal facts

The applicant, Eric Alboreo, is a French national who was born in 1963 and lives in

Lannemezan (France).

On 24 January 1999 he was placed in pre-trial detention, accused of having taken part in

the robbery of an armoured vehicle during the course of which a courier was shot.

On 22 November 2002 the Bouches-de-Rhône Assize Court sentenced Mr Alboreo to

twenty years’ imprisonment for the offences with which he had been charged and

ordered that he be ineligible for parole for ten years.

Between 3 February 2000 and 26 November 2009 he was registered by the prison

authorities as a “high-risk prisoner”. He was therefore placed under a security regime

entailing, among other things, frequent changes of his place of detention and periods in

solitary confinement.

On 14 April 2003, while serving his sentence in Aix Luynes Prison, he escaped by

helicopter but was arrested on 9 May 2003 and returned to prison. On 19 January 2007

the Bouches-de-Rhône Assize Court sentenced him to an additional five years’

imprisonment for that escape.

Between 9 May 2003 and 16 July 2007 the applicant was transferred seventeen times

between various prisons throughout mainland France.

On 21 March 2006 Mr Alboreo applied to the urgent applications judge of the Toulouse

Administrative Court to have execution of the transfer measure suspended.

By an order of 10 April 2006 the urgent applications judge rejected the application. He

considered that that decision, which did not alter the detention regime applicable to Mr

1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month

period following its delivery, any party may request that the case be referred to the Grand Chamber of the

Court. If such a request is made, a panel of five judges considers whether the case deserves further

examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral

request is refused, the Chamber judgment will become final on that day.

Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for

supervision of its execution. Further information about the execution process can be found here:

www.coe.int/t/dghl/monitoring/execution

Alboreo, should be regarded as an internal regulatory measure which could not be set

aside on an application for judicial review.

By a judgment of 20 December 2006 the Conseil d’Etat, with which an appeal against

that order had been lodged, considered that it was not necessary to rule on the

application for suspension since the transfer decision at issue had been executed in full.

During one of those security rotations, Mr Alboreo was transferred to Toulouse-Seysses

Prison and placed in a cell in the solitary confinement wing. In protest against those

security rotations, he refused on several occasions to enter or to leave his cell. He was

consequently placed in the punishment block.

On completion of his period of disciplinary punishment, Mr Alboreo was to return to his

cell in the solitary confinement wing but given his earlier refusal, and following

altercations with guards on 26 and 27 November 2005, the prison authorities decided to

call on the regional intervention and security teams to force the applicant to leave the

punishment cell on 3 December 2005.

Following that intervention, Mr Alboreo lodged an ordinary complaint, followed by a

criminal complaint together with a civil party application, complaining of the conditions in

which he was being held. An investigation was carried out, resulting in a decision that

there was no case to answer.

Mr Alboreo then applied to the indictments chamber, which upheld the decision that

there was no case to answer. He lodged an appeal on a point of law which was dismissed

by a judgment of 3 February 2009.

From 16 July 2007 and until his release Mr Alboreo was held at Lannemezan Prison.

Eligible for release on 9 July 2018, he was released on licence on 17 March 2010 on

health grounds.

Complaints, procedure and composition of the Court

Relying in particular on Article 3, the applicant complained of the security rotations to

which he had been subject during his imprisonment and the ill-treatment to which he

had been subjected during his time in solitary confinement and, more particularly, while

in the punishment block.

Relying on Article 13 taken together with Article 3, the applicant further complained of

the lack of an effective remedy by which to challenge the security rotation regime to

which he had been subject.

The application was lodged with the European Court of Human Rights on 3 October

2008.

Judgment was given by a Chamber of seven, composed as follows:

Dean Spielmann (Luxembourg), PRESIDENT,

Jean-Paul Costa (France),

Karel Jungwiert (the Czech Republic),

Boštjan M. Zupančič (Slovenia),

Mark Villiger (Liechtenstein),

Isabelle Berro-Lefèvre (Monaco),

Angelika Nußberger (Germany), JUDGES,

and also Claudia Westerdiek, SECTION REGISTRAR.

Decision of the Court

Article 3

As to whether or not the applicant had been subjected to violence while in the

punishment cell

The Court reiterated that measures depriving a person of his liberty often involved an

element of suffering or humiliation. While that fact was inescapable, Article 3

nevertheless required that States ensured that all prisoners were detained in conditions

compatible with respect for their human dignity.

Ill-treatment had to attain a minimum level of severity to fall within the scope of Article

3. The assessment of that minimum depended 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.

As regards the events of 26 and 27 November 2005, the Court noted that the medical

certificate mentioned only minor injuries not entailing temporary incapacity for work. It

therefore found that there had been no violation of Article 3 in connection with the facts

of the case.

Turning to 3 December 2005, officers of the regional intervention and security team had

intervened on three occasions and the medical certificate issued subsequent to the

events revealed in particular fractured ribs. The Court observed that the Government

made no comment on that fracture despite the fact that the applicant had been in

detention.

In respect of a person deprived of his liberty, recourse to physical force not made strictly

necessary by his own conduct diminished human dignity and was in principle an

infringement of the right guaranteed under Article 3.

The French Government indicated that the various officers had given assurances that

they had used only that force that had been strictly necessary having regard to the

applicant’s conduct.

However, the Court was of the view that the applicant’s claims were plausible given the

way in which the operations had been conducted and, in particular, the fact that the

applicant, who was 1.72m tall and weighed 66kg, had been overpowered by four officers

of the regional intervention and security team and pinned to the ground on two

occasions.

The Court considered that in the instant case, the Government’s failure to provide an

explanation and the fact that it was impossible to establish the exact circumstances in

which the applicant had been injured while being restrained by officers of the State, did

not prevent it from finding a substantive breach of Article 3.

The Court therefore considered that Mr Alboreo had been subjected to inhuman and

degrading treatment, in breach of Article 3 of the Convention.

As to the applicant’s complaints concerning the security rotations and being placed in

solitary confinement

The Court considered in the instant case that given Mr Alboreo’s profile and history and

the danger he represented, the prison authorities had struck a fair balance between

security requirements and the need to ensure that the prisoner was held in conditions

compatible with human dignity.

Article 13 taken together with Article 3

The Court reiterated that Article 13 of the Convention guaranteed the availability of a

remedy at national level to enforce the substance of the Convention rights and freedoms

in whatever form they may happen to have been secured in the domestic legal order. It

considered that the effectiveness of a remedy within the meaning of Article 13 did not

depend on the certainty of a favourable outcome for the applicant.

The Court noted that the fact that it had found that there had been no violation of Article

3 concerning the security rotations to which the applicant had been subject did not mean

that his complaint had not been arguable.

The Government stated that until the first decade of the twenty-first century, the Conseil

d’Etat had consistently held that administrative transfer decisions were not actionable

administrative acts, but were included in the category of internal regulatory measures

which were not amenable to judicial review.

However, in three Assembly decisions of 14 December 2007, the Conseil d’Etat extended

the right of prisoners to apply to the administrative court, in particular in connection with

security rotations.

The Court considered that the effectiveness of the remedy referred to by the

Government in relation to the applicant’s transfers during the period of his imprisonment

had not been established. In fact, it was by a judgment of 14 December 2007 that the

Conseil d’Etat had acknowledged that a decision subjecting a detainee to a security

regime did not constitute an internal regulatory measure, but an administrative decision

amenable to judicial review.

The Court accordingly concluded that at the material time no effective remedy had been

available to Mr Alboreo to assert his rights under Article 3 of the Convention regarding

his repeated transfers. There had therefore been a violation of Article 13 of the

Convention taken together with Article 3.

Article 41

Under Article 41 (just satisfaction) of the Convention, the Court held that France was to

pay the applicant 10,000 euros (EUR) in respect of non-pecuniary damage.

The judgment is available only in French.

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