Prison Overcrowding and the Developing Case-Law of the European Court of Human Rights

Abstract

This Chapter looks into the manner in which the issue of prison overcrowding is addressed under the European Convention on Human Rights. It examines, in particular, the legal context in which the European Court of Human Rights leading case-law on the matter—Muršić v Croatia—has developed, and the effects which that case-law has created in the European legal landscape. In the context of this inquiry, the Chapter first analyses the concept of ‘prison overcrowding’. It finds that there is a lot of uncertainty over the main characteristics of that concept but that it may be best understood from the perspective of a ‘totality of conditions’ test, which focuses on the qualitative aspects of imprisonment rather than any pre-determined numerical criteria. The Chapter further provides an overview of the evolving Convention case-law concerning the rights of prisoners and, in particular, regarding the protection from prison overcrowding. In this connection, the Chapter analyses in detail the principles developed in the Muršić judgment. It finds that these principles are duly followed as the relevant law both in the Court’s subsequent processing of cases and at the wider European level, notably in the case-law of the Court of Justice of the European Union. The Chapter cautions, however, that this coherence in the case-law may not be sufficient to address the problem of prison overcrowding and that the European legislature and policy makers will need to reflect on the possibility of agreeing over the common binding minimum standards of material conditions of detention.