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FIFTH
SECTION
CASE OF RENOLDE v. FRANCE
(Application
no. 5608/05)
JUDGMENT
STRASBOURG
16
October 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Renolde v. France,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Rait
Maruste,
Jean-Paul Costa,
Renate Jaeger,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 9 and 25 September 2008,
Delivers
the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
- The
case originated in an application (no. 5608/05) against the French
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a French national, Ms Hélène
Renolde (“the applicant”), on 3 February 2005.
- The
applicant was represented by Mr E. Renolde, her father, who lives in
Chatou. The French Government (“the Government”) were
represented by their Agent, Mrs E. Belliard, Director of Legal
Affairs at the Ministry of Foreign Affairs.
- The
applicant alleged that the French authorities had not taken the
necessary measures to protect the life of Joselito Renolde and that
his placement in a punishment cell for forty-five days had been
excessive in view of his mental fragility. She relied in substance on
Articles 2 and 3 of the Convention.
- On
3 November 2005 the Court decided to give notice of the application
to the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in Chatou.
- The
applicant is the sister of Joselito Renolde, who was born on
17 August 1964 and died on 20 July 2000 after hanging himself in
a cell in Bois-d’Arcy Prison, where he was in pre-trial
detention. They are members of a family of Travellers.
A. The facts
- Joselito
Renolde was separated from his former partner, with whom he had two
children.
- On
12 April 2000 he was placed under investigation by the investigating
judge at the Meaux tribunal de grande instance for the armed
assault on 8 April 2000 of his former partner and their
thirteen-year-old daughter, occasioning total unfitness for work for
more than eight days, and also for criminal damage and theft.
- On
the same day Joselito Renolde was placed in pre-trial detention in
Meaux Prison. A medical and psychological report ordered by the
investigating judge, submitted on 19 July 2000, found that he had
retardations and deficits in the cognitive sphere; that, having a
neurotic structure, he possessed immature and infantile defence
mechanisms and several paranoid traits; and that, as he was incapable
of mentalising, all his violence was expressed on a physical level.
- On
30 June 2000 he was transferred to Bois-d’Arcy Prison to be
closer to his family. His personal file described him as a normal
person and mentioned sedative treatment.
- On
2 July 2000 Joselito Renolde attempted to commit suicide by cutting
his arm with a razor and was treated at the infirmary. The warder on
duty found him to be somewhat “disturbed” and called in
the Rapid Crisis Intervention Team (Équipe Rapide
Intervention de Crise – “ERIC”) from the
psychiatric unit at Charcot Hospital after Joselito Renolde had
claimed to be hearing voices. The duty officer also observed three
other cuts on his forearm and noted in the file that he had forced
his way out of his cell.
- The
emergency report drawn up by the ERIC team stated:
“Patient who made an SA [suicide attempt] by
cutting his forearm with a razor. This act took place in the context
of a hallucinatory delusional state observed since yesterday by the
prison duty staff. On being interviewed, the patient displays
incoherent, dissociative speech, a listening attitude, mentions
verbal hallucinations, [illegible], persecutory delusional statements
... The patient mentions his psychiatric history, says that he has
already been admitted to hospital and has already taken Tercian ...
Conclusion: acute delirious episode.”
- The
ERIC team accordingly prescribed antipsychotic neuroleptic treatment,
later adding an anxiolytic. The infirmary staff supplied the medicine
to Joselito Renolde twice a week from 2 July 2000, without checking
that he actually took it.
- From
3 July 2000 onwards, Joselito Renolde was treated by the Regional
Medical and Psychological Service (service medico-psychologique
regional – “the SMPR”) and placed in a cell on
his own under special supervision, which took the form of more
frequent patrols. He was seen by the SMPR on 3, 4, 5, 7, 8, 10, 13,
18, 19 and 20 July 2000.
- On
4 July 2000 a trainee warder reprimanded him for throwing a piece of
bread out of the window. Joselito Renolde threatened her with a fork,
saying:
“I’ll see you outside and we’ll see
who has the power.”
He
then threw a stool in her face. The warder was certified unfit for
work for five days.
- During
the inquiry into that incident, Joselito Renolde made incoherent
statements and denied what had happened. The inquiry report stated:
“very disturbed prisoner who had already wanted to go to the
SMPR at 7.50 a.m., received by the SMPR in the afternoon”.
As to the action to be taken, the report stated:
“Very disturbed prisoner, being monitored by the
SMPR, will need to go before the disciplinary board.”
- On
5 July 2000 Joselito Renolde was interviewed by the disciplinary
board and spoke coherently. He stated that he had been asleep because
of his medication but that the warder would not leave him alone; he
denied that he had thrown a stool at her or threatened her with a
fork but admitted having thrown a piece of bread outside.
- The
disciplinary board found it established that physical violence had
been used, entailing disciplinary offences punishable under Article
D. 249 1 and Article D. 249 2, paragraph 1, of the
Code of Criminal Procedure. Joselito Renolde was given a penalty of
45 days in a punishment cell, which he began serving on 5 July
2000.
- On
6 July 2000 he wrote a letter to his sister in which he compared his
cell to his tomb and said that he was “at the limit” and
taking tablets. He explained to her that he would be spending 45 days
confined within four walls, with no television or music. In a drawing
he depicted himself as crucified on a tomb bearing his name, next to
the bed in his punishment cell, and ended his letter as follows:
“Lito [his nickname] is a sad story, you know, I
don’t know if my life is worth living, with all the troubles I
have ... and yet I haven’t hurt anyone. You know, I’m
alive and I don’t even know why. I believe in heaven, maybe
it’s better up there. You know, I would like to sleep and never
wake up again. What is keeping me going are the little ones at home,
because I love them.”
- The
letter was sent on 10 July 2000 (date of the postmark).
- In
a letter of 12 July 2000, received at the investigating judge’s
registry on 17 July 2000, Joselito Renolde’s lawyer asked the
judge to order a psychiatric examination of her client in order to
ascertain whether his mental state was compatible with detention in a
punishment cell. The letter from the lawyer read as follows:
“... I met Mr Joselito Renolde in Bois d’Arcy
Prison, in a punishment cell where he has been placed for 45 days.
Mr Joselito Renolde’s mental state prompted the
present request.
I asked Mr Joselito Renolde to describe the events that
led to disciplinary proceedings being instituted against him. He
stated, among other things: ‘I was hearing voices ... It was my
family ... I wake up in the morning, I say it’s daylight ...
They tell me it isn’t ...’ etc. ...
I was unable to establish a coherent dialogue with Mr
Joselito Renolde.
Having regard to this state of affairs and the worsening
of his condition (I would also point out that, unless I am mistaken,
Mr Joselito Renolde has been admitted to a psychiatric institution in
the past), I consider it essential that he should be seen as soon as
possible by a psychiatric expert appointed by you.
The purpose of the present request is therefore to
obtain a psychiatric examination of Mr Joselito Renolde, the expert
being instructed, in particular, to determine whether Mr Renolde’s
mental or physical state is compatible with pre-trial detention as
currently being served, in particular placement in a punishment cell,
and whether he should undergo appropriate treatment in view of his
condition.”
- According
to information supplied by the Government, the request for an
examination was referred on 19 July 2000 by the investigating judge
to the public prosecutor, who stated on the same day that he had no
objection to such a measure.
- Joselito
Renolde was supplied with medication for the last time on 17 July
2000. He was handed several days’ medication, with no
supervision of whether he actually took it.
- During
the night of 19 to 20 July 2000, an intervention report noted that at
4.25 a.m. Joselito Renolde was not asleep, was tapping at the bars of
his cell and wanted to go out.
- On
20 July 2000, between 11 a.m. and noon, a nurse from the psychiatric
service met him and told him that someone from social services would
be coming to see him later. On leaving his cell for exercise at 3
p.m., he asked to see a doctor. At 4 p.m. he returned to his cell.
- At
4.25 p.m. the warder on patrol found him hanging from the bars of his
cell with a bed sheet. A doctor and two nurses from the Outpatient
Consultation and Treatment Unit (unité de consultation et
de soins ambulatoires – “the UCSA”) arrived at
4.30 p.m., followed by the ambulance service and fire brigade at 4.45
p.m. Despite efforts to revive him, Joselito Renolde was pronounced
dead at 5 p.m.
B. Procedure
- After
being called to the scene at 4.50 p.m., the police conducted initial
inquiries and interviews. The Versailles public prosecutor visited
the scene at 7 p.m. and a preliminary investigation was opened.
- On
21 July 2000 a forensic medical examiner conducted an autopsy and
reached a finding of suicide by hanging.
- An
expert toxicological report, ordered by the public prosecutor on
21 July 2000, found that no medicinal substances were
present in Joselito Renolde’s body, other than paracetamol.
- The
warders who had been present on the scene, the medical staff and the
prisoners placed in solitary confinement in neighbouring cells were
questioned.
- Mr
R., a warder, stated that on the day of the incident Joselito Renolde
had gone out for exercise without any trouble and that he had been
seen that same morning by the medical and psychological service, who
had not issued any instructions concerning him. Mr R. added:
“Mr Renolde told us that he could hear his son
speaking to him at night. He explained that people wanted to come
into his cell.”
- One
of the prisoners in solitary confinement in a neighbouring cell, Mr
N., stated:
“During our discussions, he told me that he felt
anxious and down as he was not used to being alone, and he would
speak to God, asking him what he was doing here, and would start to
cry ... I called out to him but he did not reply because he was
crying.”
- Mr
R., a warder, mentioned that on 2 July he had had to call the
ERIC team because Joselito Renolde had been making strange comments,
saying that he could hear his son calling him and telling him that he
wanted to kill him. Mr R. added:
“Objectively, I believe that this person was not
at ease with himself. I know that he was on medication because he was
being monitored by the SMPR. It should be pointed out that Renolde
was under special supervision because he was being monitored by the
psychiatric service.”
- Dr
L., the psychiatrist in charge of the SMPR, confirmed that the SMPR
had supplied Joselito Renolde with medication for several days in his
cell twice a week, on Tuesdays and Fridays, without the nurses
checking whether he actually took it. He pointed out that, where a
prisoner’s mental state required regular attention, the doctor
ordered the medication to be taken daily in the SMPR in the presence
of the nurses. In Joselito Renolde’s case, he stated that the
members of his service had not “at any time noted any factors
suggesting that the medication should be taken at shorter intervals,
or in the service itself”. He added that checking whether all
medication prescribed by the SMPR was actually taken was impossible
and “contrary to the principle of trust which underlies the
therapeutic alliance in a hospital environment”.
- Mr B.,
a psychiatric nurse, stated that Joselito Renolde had not displayed
an attitude suggesting that he might not take his medication.
- Ms
H., the psychiatric nurse who had seen him the morning before his
suicide, stated that he had not seemed particularly depressive to her
and that no comments of a depressive nature had aroused her attention
that day.
- Joselito
Renolde’s former girlfriend, who was likewise questioned,
stated that he had been admitted to psychiatric institutions on
several occasions.
- On
8 September 2000 the public prosecutor applied for a judicial
investigation to be opened in respect of a person or persons unknown
for manslaughter, and an investigating judge of the Versailles
tribunal de grande instance was appointed to that end. On
15 September 2000 Joselito Renolde’s brothers and sisters,
including the applicant, applied to join the proceedings as civil
parties.
- On
16 October 2000 the investigating judge appointed two psychiatric
experts, Dr G. and Dr P., instructing them to inspect Joselito
Renolde’s medical records; to analyse their contents and to
determine whether the condition from which he suffered was compatible
with detention in a punishment block, whether the absence of
medicinal substances in his blood was normal, whether it was to be
concluded that he had deliberately refrained from taking his
medication and whether such an interruption of treatment had
influenced his behaviour, and in particular his suicide; to clarify
the reason for the ERIC team’s intervention on 2 July 2000; to
interview, if necessary, the SMPR psychiatrist and nurses and the
members of the ERIC team; and to determine whether Joselito Renolde’s
suicide had been foreseeable in view of his conduct and state of
health.
- The
experts inspected the file on the criminal proceedings and Joselito
Renolde’s medical records. On 29 March 2001 they submitted
their report, concluding as follows:
“The medical records as a whole and the interviews
of those who came into contact with Mr Renolde indicate the
following:
– He had acute psychotic disorders at
the time of his arrival in Bois d’Arcy, and those disorders
seem to have receded fairly quickly as a result of the medication
prescribed. In any event, there is little mention of these delusional
factors in later observations, although a prison warder observed that
Mr Renolde talked to himself at night (hallucinatory dialogue?). The
SMPR team found his psychiatric condition to be compatible with
detention, not requiring admission to a psychiatric institution. The
letter which the prisoner sent his parents on 18 July shows that he
retained a certain degree of coherence, although he may have been
keeping his delirium or hallucinatory disorders to himself.
– There is no evidence in the file
indicating the presence of a depressive syndrome as such: no sign of
carelessness, no expression of suicidal thoughts, no manifest
sadness, apart from, of course, a legitimate gloom or sadness linked
to incarceration, separation from his children, etc. ...
Having regard to the context and to the information in
our possession, we consider that his committing suicide was more the
consequence of a psychotic disorder than of a depressive syndrome.
The act may have taken place in a hallucinatory state (it appears
that he sometimes heard voices telling him to kill himself),
especially if the medication had not been correctly taken, as the
toxicological examinations show.
It is to be noted that the response of the ERIC team,
which intervened from the outset following a suicide attempt, was to
prescribe neuroleptics and not antidepressants, which confirms the
psychotic nature. These disorders could perhaps have called for a
discussion of the advisability of admission to a psychiatric unit if
the hallucinatory, dissociative and delusional aspects had been
prominent and hence incompatible with continued detention. However,
seeing that the disorders rapidly improved, it may be felt that
continued detention remained possible in so far as the SMPR kept the
prisoner under very close observation, although supervision of his
daily taking of medication would also have been helpful.
Conclusions:
(1) Mr Joselito Renolde was suffering from
psychotic disorders at the time of his arrival in Bois d’Arcy
Prison. His psychotic disorders were described as an acute delirious
episode by the ERIC team and he made an initial suicide attempt on
2 July 2000 by phlebotomy. The suicide attempt may have taken
the form of self-mutilation in a delusional state. It is also
legitimate to wonder whether his assault on a warder, in the days
that followed, was not likewise part of a pathological acting-out
process. A course of neuroleptic treatment was immediately started,
which seems to have been effective in that Mr Renolde’s speech
became more coherent. At the same time, he was placed in the
punishment block. If his state of health was compatible with
detention, we do not consider that placement in the punishment block
could actually have worsened his psychological condition, since the
dominant disorders were not depressive but psychotic. It remains to
be determined whether such disorders could have been treated
satisfactorily in detention, bearing in mind that the medication was
handed to the prisoner only twice a week and thus left at his
disposal. In view of his lack of awareness of the disorders, it would
perhaps have been preferable to have supplied him with the medication
every day and to have supervised his taking it.
(2) If no medicinal substance was found in
the toxicological examinations, it can only be concluded that the
prisoner refrained deliberately (or in a state of delirium) from
taking his medication (anxiolytics and neuroleptics). It cannot
therefore be ruled out that this poor medicine compliance might have
contributed to the suicide, which may have been committed in a state
of delirium. However, even if Mr Renolde was no longer under
medication, none of the members of the team, including the nurse who
met him on the day of his suicide, noted any resurgence of delirium,
any incoherent behaviour or any major signs of dissociation. The
suicide attempt cannot be solely ascribed to psychotic disorders. It
may quite conceivably have taken place at a time of legitimate
despair or sadness in a person who readily resorted to acting-out
(suicide attempt on 2 July, assault on 5 July, suicide on 20 July).
(3) On 2 July the ERIC team treated an injury
which Mr Renolde had intentionally inflicted to his forearm with a
razor blade in a moment of delirium. The practitioners attending to
Mr Renolde did not observe any sign of depression but manifest
psychotic disorders involving delirium, hallucination, the listening
attitude, etc...
(4) Having regard to the information in our
possession, we did not consider it necessary to meet the SMPR staff
and the members of the ERIC team.
(5) This prisoner’s suicide was not
foreseeable, at least in the short term, in so far as he did not
display any suicidal intentions, no manifest depressive syndrome was
present, and he was regularly monitored by the SMPR staff and had
been seen that day by a nurse, who did not report anything abnormal
in his behaviour.”
- The
civil parties were interviewed by the investigating judge on 23 May
2001.
- On
23 July 2001 the judge notified the parties that the investigation
was complete. In a letter of 9 August 2001 the civil parties’
lawyer asked for certain steps to be taken, namely for the persons
responsible to be charged with the manslaughter of Joselito Renolde
through a breach of their duties of care and safety, in the
alternative with endangering his person by placing him in a
punishment cell although he was known to be extremely fragile, and in
the further alternative with failing to assist a person in danger.
- In
an order of 14 August 2001 the judge refused the request, giving the
following reasons:
“The persons who had ‘custody’ of
Joselito Renolde were not qualified to assess his physical and mental
condition or to intervene in the process of distributing and
administering his medication.
Mr Renolde was monitored on a very regular basis by the
SMPR shortly after being transferred to Bois d’Arcy Prison. He
was seen nearly ten times by that service between 3 and 20 July. His
suicide attempt on 2 July prompted the ERIC team to intervene and to
prescribe medication, which alleviated Mr Renolde’s psychotic
disorders. The SMPR staff found his psychiatric condition to be
compatible with detention, including in a punishment cell, since it
did not decide to admit him to a psychiatric institution.
The experts did not find any evidence in the subject’s
psychiatric records suggesting the presence of a depressive syndrome.
In their view, his suicide was more the consequence of a psychotic
disorder than of a depressive syndrome.
Accordingly, the constituent elements of manslaughter,
endangering the person of another or failing to assist a person in
danger have not been made out.”
- In
an order of 11 September 2001 the judge ruled that there was no case
to answer, on the ground that the investigating authorities had found
no basis on which anyone could be held criminally liable.
- The
civil parties appealed against the order to the Investigation
Division of the Versailles Court of Appeal, asking for further
inquiries to be made with a view to bringing charges against all
those responsible for the offences of manslaughter, endangering the
life of another and failing to assist a person in danger. In a
memorial of 12 March 2002 they expressed doubts, in particular, about
the 45-day disciplinary sanction imposed on Joselito Renolde, who was
known to be a fragile person who had already attempted suicide and
had displayed suicidal intentions in his letters.
- In
an interlocutory judgment of 29 March 2002 the Investigation Division
ordered additional inquiries and appointed one of its judges to
conduct them.
- On
14 January 2003 the judge requested a copy of the file on the
investigation in respect of Joselito Renolde.
- On
19 May 2003 the judge interviewed Mr C., deputy governor of
Bois-d’Arcy Prison and the person in charge of the “adult”
wing, which included the “arrivals” block, the
solitary-confinement block and the punishment block. Mr C.
stated that Joselito Renolde had been included in the warders’
special register from 2 July, after slashing his arms, and that he
had then been examined by the psychiatric emergency team. The
psychiatrist had found that he was in a delusional state with acute
psychotic decompensation. From that date on, he had been under
special supervision and had been placed in a cell on his own. Mr C.
explained that the taking of medication by prisoners was the
responsibility of the SMPR staff and not the prison authorities. He
also pointed out that the monitoring of correspondence could not
entail reading every letter in detail.
- On
29 September 2003 the investigating judge of the Court of Appeal
ordered a further toxicological report on the basis of samples taken
on 21 July 2000, with a view to determining the date on which
Joselito Renolde might have stopped taking his prescribed medication.
The report, submitted on 4 February 2004, concluded that at the
time of his death, Joselito Renolde had not taken the prescribed
anxiolytic medication for at least one to two days, and the
neuroleptic medication for at least two to three days.
- On
18 May 2004 the judge interviewed Dr L., the psychiatrist in charge
of the Bois-d’Arcy SMPR. Dr L. considered that Joselito
Renolde’s condition had not called for any particular
precautions in terms of taking medication, and that there had been no
clearly identified or suspected suicide risks, no serious behavioural
disorders and no suspicion of incorrect use of medication. Nor, in
the psychiatrist’s view, was there any incompatibility in
prescribing neuroleptic medication to a prisoner in a punishment
cell.
- The
submission of the findings of the additional inquiries was noted in a
judgment of 11 June 2004.
- A
hearing before the Investigation Division was held on 12 January
2005.
- In
a judgment of 26 January 2005 the Investigation Division upheld the
ruling that there was no case to answer, holding as follows:
“Following the prescription of neuroleptic
medication by the medical service, no further signs of aggression
towards others or himself were observed on the part of Joselito
Renolde after the incident of 4 July 2000 until the afternoon of 20
July. The medication prescribed was therefore effective during that
period.
It was decided by the medical authorities in the present
case that Joselito Renolde should be allowed to administer his own
treatment after being supplied with several days’ medication.
There was a distribution on 17 July. The expert toxicological report
established that the prisoner had not taken the medication supplied
to him.
Joselito Renolde’s medication was thus
administered in accordance with the regulations set out in the
circular of 8 December 1994 on the provision of health care for
prisoners. Since the principle that medication is taken freely by the
prisoner was observed in Joselito Renolde’s case, it cannot be
concluded on the basis of the evidence available prior to the
afternoon of 20 July 2000 that the failure to depart from this
principle constituted negligence within the meaning of Article 121 3,
paragraph 4, of the Criminal Code on the part of any doctor or member
of the medical staff of Bois-d’Arcy Prison. Since the time of
Joselito Renolde’s placement in a punishment cell, no suicide
risk or serious behavioural disorder had been identified; nor was
there any suspicion of incorrect use of medication.
Accordingly, as regards the actions of the prison staff,
neither the investigation nor the additional inquiries have found any
potential evidence of negligence within the meaning of Article 121 3,
paragraph 4, of the Criminal Code.
Nor did the imposition of a disciplinary sanction on
Joselito Renolde constitute a manifestly deliberate breach of a
special statutory or regulatory duty of safety or care exposing the
prisoner to an immediate risk of death or injury. The same applies to
the fact of not checking that the medication was taken. No provision
prohibited the imposition of a disciplinary sanction in Joselito
Renolde’s case or [dictated] that he should be compelled to
take his medication.
Lastly, no evidence from the investigation or the
additional inquiries supports the conclusion that anyone deliberately
refrained from providing or ensuring the provision of assistance to
Joselito Renolde, who had been prescribed medication and had not
caused any particular incident for 15 days.”
The
civil parties did not appeal on points of law.
II. RELEVANT LAW AND PRACTICE
A. Domestic law
1. Psychiatric treatment in prisons
- Since
1986, psychiatric treatment for prisoners has been provided by the
public hospital service. Article 11 of the Decree of 14 March
1986,
issued pursuant to the Psychiatric Sectorisation Act of 31 December
1985, provides:
“Within each regional branch of the Prison
Service, one or more prison-based psychiatric sectors shall be set
up, each attached to a public hospital ... Each of these sectors
shall include a regional medical and psychological service [SMPR],
based in a prison facility ...
The sector shall be placed under the authority of a
hospital psychiatrist ... and assisted by a multidisciplinary team
from the hospital to which the sector is attached ...”
- Article
11, paragraph 3, of the Decree provides that the SMPRs’ duties,
organisational structure and operating procedures are to be laid down
in a set of model rules.
The
order of 14 December 1986 on the model rules states the following:
Article 2
“The regional medical and psychological service
... shall engage in activities for the prevention, diagnosis and
treatment of mental disorders for the benefit of the prison
population in the facility in which it is based ...”
Article 3
“The regional medical and psychological service
shall, more specifically, perform the following tasks:
– a general task of prevention of mental illness
in the prison environment, in particular through systematic testing
for mental disorders of all those entering the facility in which it
is based;
– provision of the necessary psychiatric treatment
to both remand and convicted prisoners ...”
- The
Law of 18 January 1994 transferred responsibility for the provision
of all treatment for prisoners to the public hospital service.
Prisoners receive treatment from medical units – outpatient
consultation and treatment units (UCSAs) – that are set up
within prisons and are directly attached to the nearest public
hospital (Article D. 368 of the Code of Criminal Procedure).
- Article
D. 373, paragraph 3, of the Code provides that the practical aspects
of the SMPR’s intervention and its coordination with the UCSA
are to be laid down in a protocol drawn up in accordance with the
Decree of 14 March 1986.
- Article
D. 382 of the Code provides that, if the doctors from the SMPR or the
UCSA consider that a prisoner’s health is not compatible with
detention, they are to notify in writing the prison governor, who
must immediately inform, where appropriate, the relevant judicial
authority.
- Article
D. 398 provides:
“Detainees suffering from the mental disorders
referred to in Article L. 342 of the Public Health Code cannot
be kept in a prison facility.
On the basis of a detailed medical certificate and in
accordance with the legislation in force, it shall be the duty of the
prefect to ensure that they are compulsorily admitted as soon as
possible to an approved health-care institution within the meaning of
Article L. 331 of the Public Health Code.
The rule in the second paragraph of Article D. 394
concerning supervision by a police or gendarmerie officer while in
the institution shall not apply to them.”
2. Prisoners’ disciplinary offences and penalties
- Article
D. 249 of the Code of Criminal Procedure divides disciplinary
offences by prisoners into three degrees of severity. Article
D. 249-1 provides that physical violence by a prisoner against a
member of the prison staff constitutes a first-degree offence (the
most serious).
- Placement
in a punishment cell is provided for in Article D. 251, point (5), of
the Code. Article D. 251-3 of the Code lays down the terms of such
placement:
“Placement in a punishment cell under Article D.
251, point (5), consists in placing the prisoner in a cell equipped
for that purpose, which he must occupy alone. The penalty shall
throughout its duration entail the prohibition of purchases in the
canteen in accordance with Article D. 251, point (3), and the
prohibition of visits and all activities.
However, prisoners in a punishment cell shall have one
hour’s exercise per day in an individual yard. The penalty
shall, moreover, entail no restrictions on their rights regarding
written correspondence.
The duration of the placement in a punishment cell shall
not exceed forty-five days for a first-degree disciplinary offence,
thirty days for a second-degree disciplinary offence and fifteen days
for a third-degree disciplinary offence.”
3. Relevant provisions of the Criminal Code
- Article
121-3 of the Criminal Code provides:
“No serious crime (crime) or other major
offence (délit) can be established in the absence of
intention to commit it.
However, where the law so provides, deliberately
endangering the person of another shall constitute a major offence.
A major offence shall also be established, where the law
so provides, in cases of recklessness, negligence or a breach of a
duty of care or safety laid down by statute or regulation where it is
found that the person concerned failed to display normal diligence,
regard being had where appropriate to the nature of his role or
functions, his responsibilities and the power and means at his
disposal.
In the case referred to in the preceding paragraph,
natural persons who did not directly cause the damage, but who
created or contributed to creating the situation which allowed the
damage to occur or failed to take steps enabling it to be avoided,
shall be criminally liable where it is established that they have
committed a manifestly deliberate breach of a particular duty of care
or safety laid down by statute or regulation, or an act of gross
negligence which exposed another person to a particularly serious
risk of which they could not have been unaware ...”
4. Case-law of the administrative courts
- Although
the principle of State liability for the acts of the prison
authorities, particular in relation to prisoner suicides, has been
affirmed by the Conseil d’Etat since 1918, such
liability has traditionally required the existence of gross
negligence.
In
the Chabba judgment of 23 May 2003 (AJDA 2003, p. 157)
the Conseil d’Etat departed from its previous position
and acknowledged State liability for the suicide of a remand
prisoner, on account of a series of acts of ordinary negligence
attributable to the prison service. That position has since been
reaffirmed (see, for example, Nancy Administrative Court of Appeal,
Tahar Sidhoun, 17 March 2005, Petites affiches no.
102, 23 May 2006, p. 6, note by P. Combeau, and Marseilles
Administrative Court, 9 February 2006, Plein Droit no.
71, December 2006, Jurisprudence p. V, concerning a suicide in an
administrative detention centre).
B. Recommendations of the Committee of Ministers of the
Council of Europe
1. Recommendation No. R (98) 7
- The
relevant parts of Recommendation No. R (98) 7 of the Committee of
Ministers of the Council of Europe concerning the ethical and
organisational aspects of health care in prison read as follows, as
regards prisoners suffering from mental disturbance:
“... D. Psychiatric symptoms, mental
disturbance and major personality disorders, risk of suicide
...
55. Prisoners suffering from
serious mental disturbance should be kept and cared for in a hospital
facility which is adequately equipped and possesses appropriately
trained staff. The decision to admit an inmate
to a public hospital should be made by a psychiatrist, subject to
authorisation by the competent authorities.
56. In those cases where the
use of close confinement of mental patients cannot be avoided, it
should be reduced to an absolute minimum and be replaced with
one-to-one continuous nursing care as soon as possible.
57. Under exceptional
circumstances, physical restraint for a brief period in cases of
severely mentally ill patients may be envisaged, while the calming
action of appropriate medication begins to take effect.
58. The risk of suicide should
be constantly assessed both by medical and custodial staff.
Physical methods designed to avoid self-harm, close and
constant observation, dialogue and reassurance, as appropriate,
should be used in moments of crisis. ...
F. Violence in
prison: disciplinary procedures and sanctions, disciplinary
confinement, physical restraint, top security regime
...
66. In the case of a sanction of disciplinary
confinement, any other disciplinary punishment or security measure
which might have an adverse effect on the physical or mental health
of the prisoner, health care staff should provide medical assistance
or treatment on request by the prisoner or by prison staff. ...”
2. Recommendation Rec(2006)2 on the European Prison
Rules, adopted on 11 January 2006
- The
relevant parts of Recommendation Rec(2006)2 read as follows:
“The Committee of Ministers, under the terms of
Article 15.b of the Statute of the Council of Europe,
...
Recommends that governments of member states:
– be guided in their legislation, policies and
practice by the rules contained in the appendix to this
recommendation, which replaces Recommendation No. R (87) 3 of the
Committee of Ministers on the European Prison Rules; ...
Appendix to Recommendation Rec(2006)2
...
12.1 Persons who are suffering from mental
illness and whose state of mental health is incompatible with
detention in a prison should be detained in an establishment
specially designed for the purpose.
12.2 If such persons are nevertheless
exceptionally held in prison there shall be special regulations that
take account of their status and needs.
...
39. Prison authorities shall safeguard the
health of all prisoners in their care.
...
40.4 Medical services in prison shall seek to
detect and treat physical or mental illnesses or defects from which
prisoners may suffer.
40.5 All necessary medical, surgical and
psychiatric services including those available in the community shall
be provided to the prisoner for that purpose.
...
42.3 When examining a prisoner the medical
practitioner or a qualified nurse reporting to such a medical
practitioner shall pay particular attention to:
...
b. diagnosing physical or mental
illness and taking all measures necessary for its treatment and for
the continuation of existing medical treatment;
...
h. noting physical or mental defects
that might impede resettlement after release;
...
j. making arrangements with community
agencies for the continuation of any necessary medical and
psychiatric treatment after release, if prisoners give their consent
to such arrangements.
43.1 The medical practitioner shall have the
care of the physical and mental health of the prisoners and shall
see, under the conditions and with a frequency consistent with health
care standards in the community, all sick prisoners, all who report
illness or injury and any prisoner to whom attention is specially
directed.
...
43.3 The medical practitioner shall report to
the director whenever it is considered that a prisoner’s
physical or mental health is being put seriously at risk by continued
imprisonment or by any condition of imprisonment, including
conditions of solitary confinement. ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicant alleged that the French authorities had not taken the
necessary measures to protect Joselito Renolde’s right to life.
She relied in substance on Article 2 of the Convention, which
provides:
“Everyone’s right to life shall be protected
by law.”
A. Admissibility
- The
Government objected, as their main submission, that domestic remedies
had not been exhausted. They observed, firstly, that the applicant
had not appealed on points of law against the Investigation
Division’s judgment of 26 January 2005. They further noted that
she had had the possibility of bringing an action for damages against
the State in the administrative courts with a view to obtaining
compensation.
The
Government pointed out in that connection that since the Conseil
d’Etat’s Chabba judgment of 23 May 2003,
administrative courts no longer required the existence of gross
negligence, and cited several judgments delivered in 2004 by the
Rouen, Amiens and Marseilles Administrative Courts in which the State
had been held liable for prisoner suicides.
- The
applicant emphasised that her aim was not to obtain compensation, but
to ensure that justice was done and that those responsible were
punished.
- The
Court considers that the applicant can claim to be a victim, within
the meaning of Article 34 of the Convention, on account of her
brother’s death (see Çelikbilek v. Turkey (dec.),
no. 27693/95, 22 June 1999, and, mutatis mutandis, Yaşa
v. Turkey, 2 September 1998, § 66, Reports of
Judgments and Decisions 1998 V, and Velikova v. Bulgaria
(dec.), no. 41488/98, ECHR 1999 V).
- As
to the first point raised by the Government, the Court observes that
under Article 575 of the Code of Criminal Procedure, an appeal on
points of law by the civil party alone, in the absence of an appeal
by the public prosecutor, will be admissible only in certain
exhaustively listed circumstances, which the Government have not
maintained were present in the instant case (see Rezgui v. France
(dec.), no. 49859/99, ECHR 2000 XI). That being so, the Court
concludes that an appeal on points of law by the applicant would have
been bound to fail and cannot therefore be regarded as an effective
remedy that should have been used.
- As
to the second point, the Court observes that the applicant brought a
civil-party application in September 2000 to join the criminal
proceedings for manslaughter, which were instituted after her
brother’s suicide and ended in January 2005. The Chabba
judgment was delivered in May 2003, almost three years after the
events in the instant case, and it was only from that date that the
existence of the remedy referred to by the Government became
sufficiently certain (see Saoud v. France, no. 9375/02, §§
77-79, ECHR 2007 ...). The Court considers that the applicant
could not have been expected to avail herself of this additional
remedy after the criminal proceedings had ended.
- The
objection must therefore be dismissed.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant submitted that the French authorities had not taken the
necessary steps to protect Joselito Renolde’s right to life.
She referred in particular to the letter sent by his lawyer to the
investigating judge, received three days before his suicide, in which
the lawyer had mentioned the worsening of her client’s mental
state and asked for an expert assessment of whether his condition was
compatible with detention, and in particular with placement in a
punishment cell.
- After
citing the Court’s case-law on the subject (in particular,
Keenan v. the United Kingdom, no. 27229/95, ECHR 2001 III;
Tanribilir v. Turkey, no. 21422/93, 16 November 2000; and
A.A. and Others v. Turkey, no. 30015/96, 27 July 2004),
the Government recounted the timeline of events and submitted that
the authorities had taken appropriate steps to protect Joselito
Renolde’s life, having regard to the information available at
the time the events had occurred.
- The
Government submitted that it was acknowledged that Joselito Renolde
had been suffering from psychotic disorders, which had manifested
themselves in an act of self-harm on 2 July 2000. Medical treatment
had been prescribed and he had subsequently been regularly monitored
by the SMPR’s medical team, which had seen him ten times
between 3 and 20 July 2000. On the SMPR’s recommendation,
the prison authorities had placed him in an individual cell under
special supervision. When he had later been placed in a punishment
cell, he had been monitored every half-hour during the day. At no
time had the SMPR indicated to the prison authorities that he posed a
suicide risk. It was clear from the expert report by Dr G. and Dr P.
that his suicide had not been foreseeable, at any rate in the short
term, in the absence of any sign of suicidal intentions or a
depressive syndrome, and that on the actual day of his suicide the
nurse who had seen him had not reported anything abnormal in his
behaviour.
- The
Government further pointed out that the prison’s medical staff
(the SMPR and the UCSA) had never indicated that his condition might
be incompatible with detention, whether under the ordinary regime or
in the punishment block, and that the experts had found that his
placement in the punishment block did not appear to have actually
worsened his condition.
- Lastly,
with regard to his medication, the experts had observed that it would
perhaps have been preferable to have supplied him with it every day
and to have supervised his taking it. The medical staff, however, had
taken the view that such an approach was unnecessary, since Joselito
Renolde had never shown any signs of refusing to take his medication
and his condition did not appear to have worsened. The psychiatrist
in charge of the SMPR had considered that the treatment had been
administered in accordance with the 1994 circular on the provision of
health care for prisoners, and the SMPR had kept Joselito Renolde
under very close observation.
- The
Government concluded that these factors were not capable of
suggesting that there had been a clear and immediate risk that
Joselito Renolde would commit suicide on 20 July 2000, and maintained
that the national authorities had responded in a reasonable way to
his behavioural problems. In any event, they could not be criticised
for failing to take specific measures such as removing sheets from
the cell.
2. The Court’s assessment
(a) Recapitulation of principles
- The
Court reiterates that the first sentence of Article 2 enjoins the
State not only to refrain from the intentional and unlawful taking of
life, but also to take appropriate steps to safeguard the lives of
those within its jurisdiction. The Court’s task is therefore to
determine whether, given the circumstances of the case, the State did
all that could have been required of it to prevent the applicant’s
brother’s life from being avoidably put at risk (see, for
example, L.C.B. v. the United Kingdom, 9 June 1998, § 36,
Reports 1998 III).
- The
Court further reiterates that Article 2 may imply in certain
well-defined circumstances a positive obligation on the authorities
to take preventive operational measures to protect an individual from
another individual or, in particular circumstances, from himself (see
Tanribilir, cited above, § 70; Keenan, cited
above, § 89; and, mutatis mutandis, Ataman v. Turkey,
no. 46252/99, § 54, 27 April 2006).
- However,
such an obligation must be interpreted in a way which does not impose
an impossible or disproportionate burden on the authorities, bearing
in mind the difficulties involved in policing modern societies, the
unpredictability of human conduct and the operational choices which
must be made in terms of priorities and resources. Accordingly, not
every claimed risk to life can entail for the authorities a
Convention requirement to take operational measures to prevent that
risk from materialising (see Tanrıbilir, cited above,
§§ 70-71; Keenan, cited above, § 90; and
Taïs v. France, no. 39922/03, § 97, 1 June 2006).
- The
Court has had previous occasion to emphasise that persons in custody
are in a vulnerable position and that the authorities are under a
duty to protect them (see Keenan, cited above, § 91;
Younger v. the United Kingdom (dec.), no. 57420/00, ECHR
2003-I; and Trubnikov v. Russia, no. 49790/99, § 68,
5 July 2005). The prison authorities, similarly, must discharge their
duties in a manner compatible with the rights and freedoms of the
individual concerned. There are general measures and precautions
which will be available to diminish the opportunities for self-harm,
without infringing personal autonomy. Whether any more stringent
measures are necessary in respect of a prisoner and whether it is
reasonable to apply them will depend on the circumstances of the case
(see Keenan, cited above, § 92; Younger, cited
above; and Trubnikov, cited above, § 70).
- Lastly,
the Court reiterates that, in the case of mentally ill persons,
regard must be had to their particular vulnerability (see Aerts v.
Belgium, 30 July 1998, § 66, Reports 1998-V;
Keenan, cited above, § 111; and Rivière
v. France, no. 33834/03, § 63, 11 July 2006).
(b) Application to the present case
- In
the light of the above, the Court has examined whether the
authorities knew or ought to have known that Joselito Renolde posed a
real and immediate risk of suicide and, if so, whether they did all
that could reasonably have been expected of them to prevent that
risk.
- The
Court observes that on 2 July 2000, eighteen days before his death,
Joselito Renolde attempted suicide by cutting his arms. The warder on
duty at the time noticed three other cuts on his forearm. The
psychiatric emergency team diagnosed an acute delirious episode and
prescribed Joselito Renolde antipsychotic neuroleptic medication. On
that occasion, Joselito Renolde mentioned that he had a history of
psychiatric problems and that he had previously been admitted to a
psychiatric institution and given neuroleptic treatment. Following
that incident, from 3 July 2000 he was monitored by the SMPR,
who continued the antipsychotic treatment.
- The
Court notes that the expert report by Dr G. and Dr P. concluded that
Joselito Renolde had been suffering from psychotic disorders at the
time of his arrival in the prison and that his suicide attempt was
not linked to a depressive syndrome but to a delusional acting-out
process attributable to such disorders.
- The
Court further observes that in the days following his suicide
attempt, Joselito Renolde continued to show signs of worrying
behaviour despite his supervision by the SMPR and the neuroleptic
medication: assault on a warder, incoherent statements during the
investigation into the assault, auditory hallucinations (he told the
warder R. that he could hear his son talking to him at night), and
incoherent discussions with his lawyer, prompting her to request a
psychiatric assessment. Lastly, the Court notes that in his letter of
6 July 2000 (after he had been placed in the punishment cell), which
must have been monitored by the prison authorities, he depicted
himself as crucified on a tomb and mentioned the idea of ending his
life.
- In
the light of the above considerations, the Court concludes that from
2 July 2000 onwards, the authorities knew that Joselito Renolde was
suffering from psychotic disorders capable of causing him to commit
acts of self-harm. Although his condition and the immediacy of the
risk of a fresh suicide attempt varied, the Court considers that that
risk was real and that Joselito Renolde required careful monitoring
in case of any sudden deterioration (see Keenan, cited above,
§ 96, and contrast Trubnikov, cited above, §§
73-74).
- It
remains to be determined whether the authorities did all that could
reasonably be expected of them to avoid that risk.
- The
Court observes that the authorities undeniably made efforts to that
end: firstly, they responded promptly when Joselito Renolde cut his
arm on 2 July 2000, by calling in the psychiatric emergency
team. After being placed under observation by the SMPR on 3 July
2000, Joselito Renolde was moved to an individual cell and was
subject to special supervision in the form of more frequent patrols.
Subsequently, when he was placed in the punishment cell, he was
monitored every half-hour during the day.
- Moreover,
there does not appear to be any evidence of negligence or lack of
supervision in the course of the events on the day Joselito Renolde
died, since his request to see a doctor when he left his cell to take
exercise was sent on immediately and a maximum of twenty-five minutes
elapsed between his return to his cell and the discovery of his death
by the warder.
- From
a medical perspective, the Court notes that the SMPR monitored
Joselito Renolde from 3 July 2000 and saw him ten times between
3 and 20 July 2000, and that on the morning prior to his death,
a nurse from the psychiatric service visited him.
- However,
the Court notes a number of factors pointing in the opposite
direction.
- Firstly,
the Court observes that in Rivière (cited above, §§
71-72) it held:
“... under Article D. 398 of the Code of Criminal
Procedure, prisoners with mental disorders may not be held in an
ordinary prison but are to be compulsorily admitted to hospital by
order of the prefect.
That provision is confirmed by Article L. 3214-1 of the
Public Health Code, which states that detainees suffering from mental
disorders should be admitted to a specially designed wing of an
ordinary health-care institution.
The Court further observes that Recommendation No. R
(98) 7 of the Committee of Ministers of the Council of Europe
concerning the ethical and organisational aspects of health care in
prison ... provides that prisoners suffering from serious mental
disturbance should be kept and cared for in a hospital facility that
is adequately equipped and possesses appropriately trained staff. The
Court has already had occasion to cite this Recommendation (see, for
example, Naumenko v. Ukraine, no. 42023/98, § 94,
10 February 2004), and attaches considerable importance to it,
although it acknowledges that the Recommendation is not in itself
binding on the member States.”
- In
the Keenan case (cited above), finding that there had been no
violation of Article 2 of the Convention, the Court had regard, in
particular, to the fact that the authorities had “responded in
a reasonable way to Mark Keenan’s conduct, placing him in
hospital care and under watch when he evinced suicidal tendencies”
(see Keenan, cited above, § 96; see also, mutatis
mutandis, Kudła v. Poland [GC], no. 30210/96, §
96, ECHR 2000 XI).
- In
the instant case, however, the Court is struck by the fact that,
despite Joselito Renolde’s suicide attempt and the diagnosis of
his mental condition, it does not appear that there was ever any
discussion of whether he should be admitted to a psychiatric
institution. The experts noted in their report that “[his]
disorders could perhaps have called for a discussion of the
advisability of admission to a psychiatric unit”. However, not
until Joselito Renolde’s lawyer requested steps to be taken on
12 July 2000 was an expert assessment envisaged as to whether his
condition was compatible with detention.
98. In
the light of the State’s positive obligation to take preventive
operational measures to protect an individual whose life is at risk,
it might have been expected that the authorities, faced with a
prisoner known to be suffering from serious mental disturbance and to
pose a suicide risk, would take special measures geared to his
condition to ensure its compatibility with continued detention.
- The
Court considers that, seeing that the authorities did not order
Joselito Renolde’s admission to a psychiatric institution, they
should at the very least have provided him with medical treatment
corresponding to the seriousness of his condition.
- In
that connection, it has devoted particular attention to the manner in
which Joselito Renolde’s treatment was administered. The
evidence indicates that his medication was handed to him twice a week
without any supervision of whether he actually took it. The
investigation revealed in this connection that the last time Joselito
Renolde had been supplied with medication was on Monday 17 July 2000,
three days before his death. However, the expert toxicological
reports revealed that at the time of his death he had not taken his
neuroleptic medication for at least two to three days and his
anxiolytic medication for at least one to two days.
- The
Court observes that, according to the conclusions of the expert
report, Joselito Renolde’s suicide was more the consequence of
a psychotic disorder than of a depressive syndrome and may have taken
place in a hallucinatory state, especially if his medication had not
been taken correctly. The experts wondered whether such disorders
could have been treated satisfactorily, bearing in mind that the
medication was handed to the prisoner only twice a week and was thus
left at his disposal. They pointed out that supervision of Joselito
Renolde’s daily taking of medication would have been helpful
and that, in view of his lack of awareness of his disorders, it would
“perhaps” have been preferable to have supplied him with
the medication every day and to have supervised his taking it.
- Despite
the cautious wording of that finding, the Court notes that the
experts considered that this poor medicine compliance might have
contributed to Joselito Renolde’s committing suicide in a state
of delirium.
- The
Government asserted that, according to the members of the psychiatric
team, Joselito Renolde had never shown any signs of refusing to take
his medication and his condition had not recently called for special
attention. The Court further notes that, during the investigation, Dr
L. stated that it was impossible to supervise all medication
prescribed by the SMPR.
- The
Court is not persuaded by those arguments. Without overlooking the
difficulties with which those working in a prison environment are
faced, it has serious doubts as to the advisability of leaving it to
a prisoner suffering from known psychotic disorders to administer his
own daily medication without any supervision.
- It
observes that in Rivière (cited above, § 63) it
considered it appropriate to set apart those mental illnesses, such
as psychosis, which entailed especially high risks for persons
suffering from them. It notes that, in contrast to Mark Keenan, who
had been diagnosed with a mild psychosis, Joselito Renolde suffered
from acute psychotic disorders, according to the experts (see
paragraph 40 above).
Although
it is not known what made Joselito Renolde commit suicide (see
Keenan, cited above, § 101), the Court concludes that in
the circumstances of the case, the lack of supervision of his daily
taking of medication played a part in his death.
- Lastly,
the Court has had regard to the fact that three days after his
suicide attempt, Joselito Renolde was given the most severe
disciplinary penalty, namely forty-five days’ detention in a
punishment cell. No consideration seems to have been given to his
mental state, although he had made incoherent statements during the
inquiry into the incident and had been described as “very
disturbed”.
- The
Court observes that placement in a punishment cell isolates prisoners
by depriving them of visits and all activities, and that this is
likely to aggravate any existing risk of suicide.
- It
notes that paragraph 56 of Recommendation No. R (98) 7 states that in
cases where the use of close confinement of mental patients cannot be
avoided, it should be “reduced to an absolute minimum and be
replaced with one-to-one continuous nursing care as soon as
possible”. Paragraph 43.3 of Recommendation No. R (2006) 2
states, for its part, that “[t]he medical practitioner shall
report to the director whenever it is considered that a prisoner’s
physical or mental health is being put seriously at risk ... by any
condition of imprisonment, including conditions of solitary
confinement”.
- The
Court reiterates that the vulnerability of mentally ill persons calls
for special protection. This applies all the more where a prisoner
suffering from severe disturbance is placed, as in the instant case,
in solitary confinement or a punishment cell for a prolonged period,
which will inevitably have an impact on his mental state, and where
he has actually attempted to commit suicide shortly beforehand.
- In
the light of all these considerations, the Court concludes that the
authorities in the instant case failed to comply with their positive
obligation to protect Joselito Renolde’s right to life, and
that there has been a violation of Article 2 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant submitted that Joselito Renolde’s placement for 45
days in a punishment cell, despite his condition, had amounted to
treatment in breach of Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- To
the extent that the Government’s objection of failure to
exhaust domestic remedies (see paragraph 63 above) also concerns the
applicant’s complaint under Article 3 of the Convention, the
Court considers that it should be dismissed for the reasons set out
in paragraphs 70-71 above.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant submitted that Joselito Renolde had been given an excessive
disciplinary sanction in view of his fragile mental state.
- The
Government referred to the Court’s case-law concerning Article
3 of the Convention and its application to detainees. In similar
cases (in particular, Keenan, cited above, and Aerts,
cited above), the Court had held that the assessment of whether the
treatment or punishment concerned was incompatible with the standards
of Article 3 had, in the case of mentally ill persons, to take into
consideration their vulnerability and their inability, in some cases,
to complain about how they were being affected by any particular
treatment.
- The
Government contended that the decision to impose the maximum penalty
for a first-degree offence (the most serious) on Joselito Renolde,
namely forty-five days in a punishment cell, had been justified by
the seriousness of the offence of assault on a prison officer. They
observed that Joselito Renolde had not appealed against the penalty,
even though the administrative courts had jurisdiction to review
whether such a penalty was proportionate to the offence committed.
- It
was therefore necessary to examine whether there had been any
physical or mental signs that should have indicated to the prison
authorities that the penalty in issue and its enforcement had
exceeded the unavoidable level of suffering inherent in detention.
The Government submitted that that had not been the case.
- Joselito
Renolde had continued to be regularly monitored by the SMPR after
being been moved to the punishment block. Moreover, there had been no
objective evidence that prior to his death he had been suffering from
a significant level of anguish or distress attributable to the
conditions of his detention. The experts had, moreover, noted that it
did not appear that placement in a punishment cell could actually
have worsened his psychological condition. The Government further
observed that neither the SMPR team nor the doctor from the UCSA who
had examined him at his request had at any time indicated to the
prison management that the enforcement of the disciplinary sanction
might endanger or be incompatible with his condition.
- Lastly,
pointing out that there was no real evidence to corroborate the view
that the prison authorities’ actions had been premeditated with
the aim of debasing Joselito Renolde, the Government concluded that
the disciplinary sanction imposed on him had not attained such a
level of severity as to constitute a violation of Article 3.
2. The Court’s assessment
- The
Court reiterates that, according to its case-law, ill-treatment must
attain a minimum level of severity if it is to fall within the scope
of Article 3. The assessment of this minimum level is, in the nature
of things, relative; it depends on all the circumstances of the case,
such as the duration of the treatment, its physical and mental
effects and, in some cases, the sex, age and state of health of the
victim (see Kudła, cited above, § 91; Gelfmann v.
France, no 25875/03, § 48, 14 December 2004; and Rivière,
cited above, § 59).
- The
Court has also emphasised the right of all prisoners to conditions of
detention which are compatible with human dignity, so as to ensure
that the manner and method of execution of the measures imposed do
not subject them to distress or hardship of an intensity exceeding
the unavoidable level of suffering inherent in detention; in
addition, besides the health of prisoners, their well-being also has
to be adequately secured, given the practical demands of imprisonment
(see Kudła, cited above, § 94). In particular, the
assessment of whether the treatment or punishment concerned is
incompatible with the standards of Article 3 has, in the case of
mentally ill persons, to take into consideration their vulnerability
and their inability, in some cases, to complain coherently or at all
about how they are being affected by any particular treatment (see,
among other authorities, Aerts, cited above, § 66;
Keenan, cited above, § 111; and Rivière,
cited above, § 63).
-
Treatment of a mentally ill person may be incompatible with the
standards imposed by Article 3 in the protection of human dignity,
even though that person may not be able or in a position to point to
any specific ill-effects (see Keenan, cited above, §
113).
- In
the instant case the Court observes that Joselito Renolde was
suffering from acute psychotic disorders which manifested themselves
in a suicide attempt on 2 July 2000. In the days that followed,
although his condition improved as a result of his neuroleptic
medication, he continued to behave in a disturbing manner, for
example by attacking a warder. The prison officer who conducted the
inquiry into that incident stated that Joselito Renolde had made
incoherent statements and noted in his report that he was a “very
disturbed” prisoner.
- The
Court has also had regard to the statement by the warder R. that
Joselito Renolde had heard his son talking to him at night, and to an
incident report from the night before his death, in which it was
noted that he had been shaking the bars of his cell and demanding to
come out.
- Although
it is mindful of the difficulties facing the prison authorities and
of the need to punish assaults on warders, the Court is struck by the
fact that Joselito Renolde was given the maximum penalty for a
first-degree offence, with no consideration being given to his mental
state or to the fact that it was his first such incident.
- The
Court observes that a penalty of this kind entails the prohibition of
all visits and all contact with other prisoners.
- It
appears from the evidence that Joselito Renolde was suffering from
anguish and distress during this period, as is attested by the letter
he wrote to his sister on 6 July 2000, in which he said that he was
at the limit and compared his cell to a tomb, portraying himself as
crucified. This is borne out by the statement given by his fellow
prisoner N. (see paragraph 32 above), whom he had told that he felt
anxious and “down” as he was not used to being alone, and
who had heard him crying.
- The
Court further observes that Joselito Renolde’s condition
aroused sufficient concern in his lawyer, who saw him on 12 July 2000
(eight days before his death), that she immediately requested the
investigating judge to order a psychiatric assessment of whether his
condition was compatible with detention, particularly in a punishment
cell.
- The
Court reiterates that prisoners known to be suffering from serious
mental disturbance and to pose a suicide risk require special
measures geared to their condition in order to ensure compatibility
with the requirements of humane treatment (see Rivière
cited above, § 75). In the Keenan case cited above,
the Court found that the imposition on Mark Keenan of a disciplinary
punishment described as serious – seven days’ segregation
in the punishment block and an additional twenty-eight days to his
sentence – amounted to treatment in breach of Article 3 of the
Convention.
- In
the instant case, however, Joselito Renolde was given a distinctly
more severe penalty – forty-five days’ detention in a
punishment cell – which may well have threatened his physical
and moral resistance. The Court considers that such a penalty is not
compatible with the standard of treatment required in respect of a
mentally ill person and constitutes inhuman and degrading treatment
and punishment (see Keenan, cited above, § 116, and
Rivière, cited above, § 76; and, by way of
contrast, Kudła, cited above, § 99, and Aerts,
cited above, § 66).
- The
Court therefore concludes that there has been a violation of Article
3.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award her any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
2 of the Convention in that the authorities breached their positive
obligation to protect Joselito Renolde’s right to life;
- Holds that there has been a violation of Article
3 of the Convention.
Done in French, and notified in writing on 16 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Judge
Villiger is annexed to this judgment.
P.L.
C.W.
CONCURRING OPINION OF JUDGE VILLIGER
I
agree with the outcome of the judgment and its thorough and
structured reasoning.
However,
I would not wish the reasoning to distract from what is, in my view,
the crucial issue of the case. It is dealt with in paragraph 100 of
the judgment. In particular, I do not think that this case is one
concerning implications of Article 2 for psychiatric patients.
In my
view, the case concerns the quite straightforward issue of
supervising a patient who is required to take medication. The present
applicant’s brother was a vulnerable person with a psychiatric
condition. The medical report described him as a “very
disturbed prisoner” (paragraph 16 of the judgment). He had
attempted to commit suicide, and the medicaments which he was
prescribed purported to prevent further suicide attempts.
It is
normal practice that any vulnerable person, for example in a
hospital, a nursing home or a children’s home, should be
supervised when taking prescribed medication. Such monitoring
involves a minimal amount of time and effort. It consists in the
assistant, nurse or doctor attending the patient until he or she has
taken the medication and ensuring that it does not, for example, fall
on the floor or is not concealed by the patient. While this
description of the sequence of events may appear trite, the matter is
of cardinal importance if a person will suffer, even suffer
seriously, from the consequences of failing to take the prescribed
medication.
It is
therefore quite surprising to read in paragraph 34 of the judgment
that Dr L., the SMPR doctor, explained that verification of whether
or not a patient had taken the prescribed medicaments was “contrary
to the principle of trust which underlies the therapeutic alliance in
a hospital environment”. The whole case turns on this
statement. While such trust might be an important element of a
relationship between a medical doctor and a responsible and mature
patient, I fail to see how such trust can at all be established with
a vulnerable person such as the applicant’s brother, who in
addition had already attempted to commit suicide.
I
find it surprising that the prison authorities were not in a position
to undertake such surveillance. Would it not have been completely
disproportionate instead to send the applicant’s brother to a
psychiatric hospital merely to monitor that he took the required
medicaments?
Since
the authorities failed adequately to supervise the applicant’s
brother, and in view of the applicant’s brother’s death,
they failed sufficiently to respect their obligations arising under
Article 2 of the Convention.
