Systemic overcrowding in prisons may amount to inhuman and degrading treatment

Mandic and Jovic v Slovenia [2011] ECHR Application Nos. 5774/10 and 5985/10 (20 October 2011)


In this case, the European Court of Human Rights confirmed that inadequate physical conditions of detention in prison, in particular insufficient personal space for prisoners resulting from systemic overcrowding, can amount to inhuman and degrading treatment in breach of article 3 of the European Convention of Human Rights. If a prison does not meet certain minimum standards, the threshold of severity necessary to amount to a breach of article 3 may be crossed even in the absence of a positive intention to humiliate or debase prisoners.


Mr Mandic, a Slovenian national, and Mr Jovic, a Serbian national (the applicants), were detained in the remand section of Ljubljana Prison in Slovenia for approximately seven months in 2009-2010 pending trial. They occupied a cell measuring 16.28 square metres together with four other inmates. The cell had no artificial ventilation, though it did have four windows which the prisoners were free to open and close. The average daily temperature in the second half of July and August of 2009 was approximately 28 degrees celcius.

The cell was equipped with a sanitary annex, separated by floor-to-ceiling walls and a door with a functioning artificial ventilation system. Partitioned showers were available for daily use on the same floor as the cell.

The cells were locked throughout the day in both the remand and the closed section of the prison and the applicants were only able to leave their cell for scheduled activities (such as visits or exercising) for an average of 2.5 hours per day. They were able to use the outside yard, which was on average used by no less than 30 prisoners at a time, for two hours a day and also had access to a recreation room for a couple of hours a week.

The occupancy of the Ljubljana Prison twice exceeded its official capacity of 128 prisoners during the period of the applicants' detention, with 261 and 245 prisoners held in 2009 and 2010 respectively. The effects of overcrowding at this prison on inmates, particularly in summer, had previously given rise to the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment recommending that efforts be made to reduce cell occupancy to a maximum of four prisoners per 18 square metre cell and subsequently criticising the lack of progress on this front. The Slovenian Human Rights Ombudsman had also expressed concern about the overcrowding and noted in a 2007 report that “the living conditions, as observed by us during the summer, were inhuman”.

The applicants complained that the conditions of their detention amounted to a violation of articles 3 and 8, and that they had no effective remedy for these violations as required by article 13. In particular, they complained of severe overcrowding, inadequate ventilation, poor sanitary conditions, excessive restrictions on out-of-cell time, high temperatures in the cell, inadequate health care and psychological assistance and exposure to violence from other inmates due to insufficient security.


Article 3

The Court noted that “severe lack of space in a prison cell” was a significant factor in determining whether detention conditions were degrading within the meaning of article 3. It observed that the applicants had been held in a cell for several months in which the personal space available to each of them was 2.7 square metres (and even less when furniture was taken into account), holding that “this state of affairs in itself raised an issue under Article 3”.

The Court considered that the applicants' situation was exacerbated by confinement to their cell day and night, save for two hours of daily exercise in the outside yard and an additional two hours per week in the recreation room. The Court took further note of the applicants' complaints regarding the high temperatures in the cells, as substantiated by reports by the Slovenian Human Rights Ombudsman. The Court accepted that the sanitary conditions may have been affected by the fact that the facilities were overcrowded, but did not find on the basis of the material before it that the cleanliness of the relevant areas of the prison was inadequate.

Significantly, in the absence of any indication that there was a positive intention to humiliate or debase the applicants, the Court ultimately concluded that:

…having regard to the fact that for the most part of their detention they had less than 3 square metres of personal space inside their cell for almost the entire day and night, the Court considers that the distress and hardship endured by the applicants exceeded the unavoidable level of suffering inherent in detention and went beyond the threshold of severity under Article 3 and therefore amounted to degrading treatment.

This followed from the principle articulated at paragraph [72] of the judgment that:

…although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3.

Article 8

The applicants relied on restrictions on visits and telephone calls to support a claim that there was a violation of the right to private life protected by Article 8. The Court rejected this claim as manifestly ill-founded as these restrictions were provided for in the relevant legislation, and were not unreasonable restrictions to “uphold the prison regime”. Furthermore, there was no evidence or concrete information submitted to indicate the applicants were unable to use the facilities in accordance with the law.

Article 13

The applicants complained that, owing to the systemic nature of the inadequate prison conditions, they did not have any effective remedy at their disposal as regards their complaints under articles 3 and 8.

The Slovenian Government asserted that there were several remedies to which the applicants could have resorted. The Court found that none of these could be regarded as constituting an effective remedy. The transfer of a remand prisoner to another prison or the transfer of a convicted prisoner under criminal legislation, for example, were inadequate because they could only have been requested by the prison governor.  Moreover, the authorities were aware of the overcrowding and presumably would have ordered the applicants' transfer if it was possible to do so. The Court also found that the other remedies proposed by the Government – namely, the institution of civil proceedings to obtain compensation, a petition to the Human Rights Ombudsman or an appeal to the Constitutional Court – were not sufficiently certain remedies in respect of inadequate prison conditions to be considered effective remedies.


Slovenia was ordered to pay the applicants 8,000 euros each in respect of non-pecuniary damage and 2,000 euros jointly in respect of costs and expenses. Further, the Court underlined the need for the Slovenian government to take steps to reduce the number of prisoners in the prison in order to prevent future violations of article 3 even though it could not conclude there was a structural problem consisting of a practice incompatible with the Convention nationwide in Slovenia.

Relevance to the Victorian Charter

Section 10 of the Charter provides protection from torture and cruel, inhuman or degrading treatment on similar terms to article 3 of the Convention. Furthermore, s 22(1) of the Charter provides that “all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person”. This decision may usefully inform the interpretation of these provisions of the Charter. The reiteration in this case that the State has positive obligations to ensure that certain minimum standards are met in detention facilities is significant in light of public authorities being caught under the Charter. This is particularly interesting in the context of the partial privatisation of the prison system in Victoria.

Rebecca James is a lawyer and Pro Bono Coordinator with Allens Arthur Robinson