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SECOND
SECTION
CASE OF
GELFMANN v. FRANCE
(Application
no. 25875/03)
JUDGMENT
STRASBOURG
14
December 2004
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 Gelfmann v. France,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr A.B. Baka, President,
Mr J.-P.
Costa,
Mr I. Cabral Barreto,
Mr V. Butkevych,
Mr M.
Ugrekhelidze,
Mrs E. Fura-Sandström,
Ms D. Jočienė,
judges,
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 23 November 2004,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25875/03) 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, Mr Jean-Francois Gelfmann
(“the applicant”), on 6 August 2003.
- The
applicant was represented by Mr E. Noël, a member of the Rouen
Bar. The French Government (“the Government”) were
represented by their Agent, Mr R. Abraham, Director of Legal Affairs
at the Ministry of Foreign Affairs.
- On
16 September 2003 the President of the Chamber directed that the
application should be communicated and given priority. In accordance
with Article 29 § 3 of the Convention, he decided that the
admissibility and merits of the application would be examined
together.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and is currently in Poissy Prison after
periods in other prisons, including Fresnes. He is suffering from
Aids, which he says he contracted in 1985, approximately nine years
before he was sent to prison.
A. The applicant's criminal convictions
- On 8 October 1994 a warrant was issued for the
applicant's arrest in connection with a number of serious offences.
On 26 June 1996 the Alpes Maritimes Assize Court convicted him of
murder, attempt, armed robbery, and the false imprisonment and
kidnapping of minors aged under fifteen and of adults. It sentenced
him to twenty-one years' imprisonment, of which a minimum of fourteen
years were to be served. On 3 March 1998 he received an
eighteen-month sentence from the Albertville Criminal Court for
attempted escape from lawful custody and assault. On 7 May 1998 the
Savoie Assize Court convicted him of false imprisonment followed by
mutilation, murder and attempted armed robbery. It sentenced him to
twenty-two years' imprisonment, with a minimum of fourteen years and
eight months to be served.
- On
19 November 2002 the Investigation Division of the Chambéry
Court of Appeal ordered that the sentences imposed by the two Assize
Courts should run concurrently in part, with the overall sentence not
to exceed the statutory maximum of thirty years. The minimum period
to be served was increased to twenty years. The applicant will now
become eligible for parole on 28 September 2023.
- He
has been held in various prisons. At the time his application was
lodged, he had been in Fresnes Prison since April 2003.
- In
September 2003 it was decided to transfer him to Poissy Prison on the
grounds that: “This transfer will enable family ties to be
maintained with his partner, as the prisoner's condition appears to
warrant”.
B. Application for a pardon
- According
to information supplied by the Government, the applicant lodged an
application for a pardon on medical grounds on 1 February 2001 with
the support of an association called Act Up. The Ministry of Justice
asked the Principal Public Prosecutor at Reims Court of Appeal to
appoint a medical expert to report on the applicant's condition and
life expectancy, and to advise whether his condition and current or
foreseeable treatment were compatible with his detention in prison or
in a special facility.
- The
Government stated that the application was turned down on 21 November
2001, after the applicant had refused to agree to a medical
examination or to allow the expert access to his records.
C. Applications for the sentence to be suspended
1. First application
- While in Clairvaux Prison the applicant made an
initial application for his sentence to be suspended under Article
720-1-1 of the Code of Criminal Procedure, a provision that had only
recently been introduced.
- The
judge responsible for the execution of sentences ordered a medical
report advising, inter alia, on the applicant's condition,
whether he was suffering from an illness that compromised his chances
of survival and whether his condition was permanently incompatible
with his continued detention.
- The
expert, Dr B., lodged his report on 2 December 2002. After stating
that the applicant had refused to undergo an examination and that the
report was based solely on the medical records, he noted that the
infection had spread and that the applicant's condition had
deteriorated, in particular because he had refused all treatment for
a year. He added:
“His condition necessitates his total, unfailing
commitment to take his medication regularly and to undergo regular
biological tests to assess how he is responding to treatment and
whether the illness has been stabilised. All opportunistic infection
must be warded off. The promiscuous nature of the prison environment
makes it a source of such infection. The current increase in the
viral load means that the prognosis is very poor and, and unless the
patient responds to treatment, things may deteriorate very rapidly.”
- Dr
B. also noted that mentally the applicant was opposed to and refused
all medical treatment and regular monitoring. He said in conclusion:
“Mr Jean-François Gelfmann's chances (of
survival) can be regarded as compromised. While it is neither
possible, nor realistic, to predict the future, the following remarks
may be made on the basis of the information in the medical records:
Despite having had no treatment for a year and the
increase in his viral load, Mr Gelfmann has not had any major
life-threatening problems of infection requiring highly specialised
care in a special facility.
The treatment Mr Jean-François Gelfmann is
required to take is oral, simple and can be administered in a prison
environment. Monitoring is the responsibility of a medical team that
is aware of the problem and composed of prison doctors and
specialists in infectious diseases of the highest order.
No one can safely predict what Mr Jean-François
Gelfmann's attitude will be and whether he will agree to treatment in
a particular environment.
Although I have not been able to examine Mr Gelfmann,
having read the voluminous file and last year's medical records and
having questioned prison staff, I consider that his condition is
currently compatible with continued detention. It will always be
possible, if he so wishes and if his symptoms worsen, for him to be
re-examined at a later date, at which point the opinion of a
psychiatrist should also be sought.”
2. Second application
- Following his transfer to Fresnes Prison, the
applicant made a fresh application to the Paris Regional Parole Court
on 4 March 2003 for an order suspending his sentence.
- In
an order of 14 May 2003, the judge responsible for the execution of
sentences requested medical reports from Dr F. and Dr S.
- In
his report of 28 May 2003, Dr F. noted:
“Mr Jean-François Gelfmann is carrying a
serious disease: Aids. The diagnosis has been confirmed by the
biological analyses (serology, viral and lymphocyte T4 count) and by
the existence of other diseases, so called communal diseases, in
association with HIV.
The disease was contracted long ago. Mr Jean-François
Gelfmann himself says that it dates from 1985 and openly admits that
he refused treatment until 1997.
The prognosis, whether in the short, medium or
long-term, is grim. The specific treatment is onerous and can only be
administered – with difficulty because the prisoner is
uncooperative – in custody or in a relatively restrictive
structure. This is the crux of the matter. In view of the seriousness
of Mr Jean-François Gelfmann's condition and his disorders,
which may be described as severe borderline syndrome, what is the
solution? On one point, we entirely agree with the prisoner: he must
be admitted to hospital for an assessment of the Aids position and
its potential evolution and a check on the associated diseases:
mycosis of the digestive tract, cutaneous mycosis, neuropathy and
particularly tuberculosis. Although the tuberculosis appears to have
been cured, in the United States Aids patients with tuberculosis are
kept in permanent quarantine, as the American specialists consider
that they are unable to cure tuberculosis in Aids patients and that
the risk of infection is too high. That concern needs to be
addressed.
All things considered, Mr Jean-François Gelfmann
is able to tolerate detention in prison provided he is kept under
strict medical supervision.
Detention in a hospital would, however, be more
compatible with his condition. Beyond the short term, that is to say
the assessment of the potential evolution of the diseases, the
question of compatibility will need to be reviewed, it being borne in
mind that, since we are dealing with diseases that are severe,
infectious and fatal, continued treatment outside the current setting
would be risky.”
- Dr
F. said in conclusion:
“Jean-François Gelfmann is receiving
treatment for a confirmed case of Aids. He has also been treated for
tuberculosis. These diseases, related illnesses (mycosis, various
infections, neuropathy) and severe psychopathy require assessment and
his admission to hospital.
The treatment he is receiving in detention in Fresnes is
entirely appropriate, compatibility with detention is reasonable
under medical supervision, but it would be more coherent for him to
be treated in hospital.”
- In
his report of 30 May 2003, Dr S. gave the following answers to
questions he had been put by the judge:
“... 3/ Seriousness of the illness and
prognosis
Mr Gelfmann has been infected by the Aids virus,
category C3 under the Atlanta classification. He has had
opportunistic complications that have been treated. He will shortly
have been receiving treatment for five years, starting with a
bitherapy which proved ineffective after six months followed by
tritherapy, which was effective, but was suspended five months later
in May 2000 owing to neurological complications.
A few months later he began quadritherapy in Troyes but
stopped taking his medication for a period of a year and a half.
He resumed treatment in July 2002 following the
reappearance of adenopathy and a genital infection, but this has
produced no results as he has refused treatment since October 2002.
Since his transfer to Fresnes, the situation has got worse and the
level of T4 has decreased.
There is a risk of death in the short to medium term.
4/ Treatment required
The quadritherapy started four years ago is no longer
effective. The patient is due to attend Fresnes Hospital for medical
treatment which has become more onerous as a result of his poor
general health. A more thorough examination is needed and can only be
performed in a special facility. There is virtually no other
treatment left to offer Mr Gelfmann against the Aids virus,
beyond the detection and treatment of other opportunistic infections,
in particular, of the digestive tract...
5/ Whether his condition is compatible with detention
in prison or requires special treatment that is only available in
hospital
Mr Gelfmann's condition is no longer compatible with
detention in prison and requires treatment that is only available in
hospital.
6/ Whether he is suffering from a disease that
compromises his chances of survival
Yes, Mr Gelfmann is suffering from a disease that
compromises his chances of survival in the short to medium term.
7/ Information and observations that may assist the
court
If the position concerning the viral load and T4
continues to deteriorate, complications may develop (lymphoma,
pneumopathy, toxoplasmosis, CMV infection or dementia). The hospital
assessment will afford more detailed information on the evolution of
the illness. Unforeseeable intercurrent lethal complication is
possible.”
- The
judge also ordered a psychiatric report, which stated that the
applicant was not suffering from a mental disorder amounting to
insanity warranting psychiatric treatment, but had presented since
childhood emotional imbalance marked by personality organisation with
characteristic psychopathic traits which was not incompatible with
continued detention. It was further noted that the applicant remained
of dangerous criminal propensity and that, owing to his refusal to
receive any psychotherapeutic treatment, there was no point in
offering him such treatment in detention or making it a condition of
a suspended sentence, since his active participation was the only
guarantee of possible success.
D. Decisions of the parole courts
- The
Paris Regional Parole Court met on 25 June 2003. In a judgment
delivered that same day, it ordered the applicant's sentence to be
suspended on the grounds that it had been established by two
concurring expert reports that he was suffering from a disease that
compromised his chances of survival and was thus eligible for a
suspended sentence.
- The
Principal Public Prosecutor's Office appealed against that judgment,
which the National Parole Court quashed on 18 July 2003 for the
following reasons:
“... a medical report dated 28 May 2003 shows that
the treatment for the diseases from which Mr Gelfmann is suffering is
onerous and can only be administered '– with difficulty because
the prisoner is uncooperative – in custody or in a relatively
restrictive structure'. The practitioner adds: 'This is the crux of
the matter' and that detention remains 'compatible with his
condition'. Another medical expert, in a report lodged on 2 December
2002, states that the treatment which Mr Gelfmann must take is
'simple and can be administered in a prison environment'.
Lastly, the impugned decision notes that a psychiatric
expert has stated that Jean-François Gelfmann 'remains of'
dangerous criminal propensity and that his 'active participation' in
the treatment is the only guarantee of possible success, 'in view of
the way his personality is structured'.
In these circumstances, it does not appear appropriate
to suspend the sentence and the impugned decision must be reversed.”
- In
a letter of 23 July 2003, the applicant's lawyer was advised by a
member of the Conseil d'État and Court of Cassation Bar
whom he had contacted that, by virtue of Article 720-1-1 of the Code
of Criminal Procedure, no appeal lay against a decision of the
National Parole Court, unless it could be shown that it had acted in
excess of its authority, which did not appear to be the position in
the applicant's case.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Domestic law and practice
1. Medical treatment in custody
- Legislation introduced on 18 January 1994 transferred
responsibility for treating prisoners to the public hospital service.
Medical treatment for prisoners is thus provided by medical
structures within the prisons (consultation and outpatient care
units) directly affiliated to the local public hospitals that are to
be found in the vicinity of each prison (Article D. 368 of the Code
of Criminal Procedure).
2. Prisoners' health and parole or suspension of
sentence
25. A
prisoner's state of health may be taken into account in deciding
whether he or she should receive a pardon from the French President
(Articles 17 and 19 of the Constitution) or be granted parole under
Article 729 of the Code of Criminal Procedure.
26. Further,
the Rights of Patients and Quality of the Health Service Act of 4
March 2002 inserted a new Article 720-1-1 into the Code of Criminal
Procedure which enables an application to be made for suspension of
sentence on medical grounds.
- An
Act of 15 June 2000 brought issues relating to parole within the sole
jurisdiction of the ordinary courts and, in particular, the judge
responsible for the execution of sentences. It also created two new
bodies, the Regional Parole Courts and the National Parole Court.
- The
relevant provisions of the Code of Criminal Procedure now provide:
Article 720-1-1
“Irrespective of the type of sentence or the
length of sentence still to be served, suspension [of sentence] may
also be ordered, for a period that not need be specified, for
convicted persons who are shown to be suffering from a disease that
compromises their chances of survival or whose condition is
permanently incompatible with continued detention, other than persons
in respect of whom a hospital order has been made owing to mental
disorder.
Suspension may be ordered only if two medical experts
state in separate, concurring reports that the convicted person comes
within one of the categories referred to in the preceding
sub-paragraph.
The judge responsible for the execution of sentences
shall have jurisdiction to suspend the sentence, in accordance with
the procedure set out in Article 722, if the custodial sentence
passed is for ten years or less or if, irrespective of the initial
sentence, the period still to be served is three years or less.
In all other cases, the Regional Parole Court shall have
jurisdiction to suspend the sentence, in accordance with the
procedure set out in Article 722-1.
The judge responsible for the execution of sentences may
at any time order medical reports on a convicted person whose
sentence has been suspended under this Article and reinstate it if
the conditions on which the sentence was suspended have not been
complied with...”
Article 722-1
The regional parole court shall have power to grant,
adjourn, refuse or revoke measures relating to parole that are not
within the jurisdiction of the judge responsible for the execution of
sentences in a reasoned decision on an application by the convicted
person or the principal public prosecutor, after consulting the
Execution of Sentences Consultative Board.
A regional parole court shall be attached to each court
of appeal and be composed of a divisional president or judge of the
court of appeal, who shall preside, and two judges responsible for
the execution of sentences within the jurisdiction of the court of
appeal, including one from the court with jurisdiction for the prison
in which the convicted person is being held if the decision concerns
a grant or refusal of parole or an adjournment.
The functions of the public prosecutor shall be
performed by the principal public prosecutor or one of his or her
advocates-general or deputies and those of the registry by a
registrar from the court of appeal.
The regional parole court shall give its ruling in a
reasoned decision following an adversarial hearing in private at
which it shall hear the submissions of the prosecution and the
observations of the convicted person and, if applicable, his counsel.
The convicted person or the prosecution may appeal to
the National Parole Court against a decision of the regional parole
court within ten days after being notified of it. Such decisions
shall be provisionally enforceable. However, an appeal by the
principal public prosecutor within twenty-four hours after receiving
notification shall operate to stay execution of the decision until
the National Parole Court has given its ruling. The National Parole
Court shall examine the case no later than two months after the
appeal, failing which the appeal will be void.
The National Parole Court shall be composed of the
President of the Court of Cassation or a judge of that court
appointed as his or her representative, who shall preside, two judges
from the seat of the court, a representative of the national
association for the rehabilitation of convicted offenders and a
representative of the national association for victim support. The
functions of the prosecution shall be performed by the Principal
Public Prosecutor at the Court of Cassation. The National Parole
Court shall give its ruling in a reasoned decision against which
there shall be no right of appeal whatsoever. The hearing shall be
held and the decision given in private, after the court has heard the
observations of the convicted person.
The arrangements for implementing this Article shall be
determined by decree. The decree will specify where the adversarial
hearing which the regional parole courts are required to hold will be
held when it concerns convicted prisoners.”
The
system has been changed by an Act of 9 March 2004 which came into
force on 1 January 2005. Henceforth, the relevant decisions are to be
taken by the judge responsible for the execution of sentences and a
new court, the court responsible for the execution of sentences.
3. Case-law
In a
judgment of 12 February 2003 concerning the application of the
aforementioned Article 720-1-1 (Papon, Gazette du Palais,
11-12 April 2003), the Court of Cassation stated:
“The principal public prosecutor argued that –
in view of the seriousness and impact of a conviction for crimes
against humanity – the court of appeal was not entitled to
decide that Mr [Papon]'s age and condition made it unlikely that
suspending his sentence would prejudice public order, without first
examining whether there were external factors that needed to be taken
into consideration. That argument must fail.
Article 720-1-1 sub-paragraph 1..., which enables a
custodial sentence to be suspended for a period that not need be
specified, irrespective of the type or length of sentence, in respect
of convicted prisoners who are shown to be suffering from a disease
that compromises their chances of survival or whose condition is
permanently incompatible with continued detention, does not lay down
any conditions as to the nature of the offences for which sentence
has been passed or risk of prejudice to public order.”
4. Statistics
- According
to figures published in an article in the Le Monde newspaper
on 25 March 2004, 83 prisoners had had their sentences suspended
since the entry into force of the Act of 4 March 2002: “In the
year 2003, 63 applications for suspension of sentence were granted,
52 were refused and 49 were being examined. At the same time, there
were 82 non-suicide related deaths in custody in 2003”.
B. Recommendation no. R (93) 6 of the Committee of
Ministers to member States concerning prison and criminological
aspects of the control of transmissible diseases including Aids and
related health problems in prison
- The appendix to the Recommendation provides, inter
alia:
“I. Prison Aspects
A. The general principles
...
14. Prisoners with terminal HIV disease
should be granted early release, as far as possible, and given proper
treatment outside the prison.”
Reference
should also be made to Recommendation no. R (98) 7 of the Committee
of Ministers to member States concerning the ethical and
organisational aspects of health care in prison.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant submitted that his continued detention in his condition
violated Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and that there
are no other grounds for declaring it inadmissible. It must therefore
be declared admissible.
B. Merits
1. The parties' submissions
- The
applicant said that he had been suffering from Aids since 1985 and
from so-called opportunistic illnesses (mycosis of the digestive
tract, cutaneous mycosis, neuropathy and tuberculosis) which,
although apparently cured, could return at any time. He maintained
that his condition was so serious that – as the evolution of
the various indicators (the number of T4 lymphocytes, the viral load)
showed – his continued detention entailed distress or hardship
of an intensity exceeding the unavoidable level of suffering inherent
in detention. He relied on the findings of the various expert
reports, in particular that his condition was not compatible with
detention in prison.
- Although
it was true that there had been periods in custody in which he had
refused treatment that he had been prescribed, this had been, as a
medical certificate produced by the Government showed, as a result of
a “reactive depressive syndrome” and his refusal was not
permanent.
- The
applicant further pointed out that the treatment he was receiving was
extremely onerous and frequently had highly undesirable side-effects
on the digestive system which on a number of occasions had caused him
to suspend his treatment in order to be able to eat. In addition, his
illness was currently incurable and the medication could do no more
than delay the inevitable. This had been noted by the experts, who
considered that his chances of survival were compromised.
- As
to the allegation that he would receive appropriate care in custody
for his condition, he relied on the reports of the experts, in
particular, Dr F., who described the treatment as “onerous”
and said that “[d]etention in a hospital would, however, be
more compatible with his condition”, and Dr S., who
stated:“[the applicant's] condition is no longer compatible
with detention in prison and requires treatment that is only
available in hospital”.
- On
the latter point, the applicant explained that “long-term”
admission to the Fresnes Prison Hospital was not possible, as sick
prisoners were only admitted for short stays and there had been times
when he had been refused admission, as the two beds allocated to
prisoners requiring close supervision were both occupied. In
conclusion, he said that only a proper hospital would be able to
provide him with suitable care.
- He
added that criticism of his request to be held in isolation was
unfounded.
- Lastly,
he said that the Court of Cassation had ruled that Article L. 720-1-1
of the Code Criminal Procedure: “does not lay down any
conditions as to the nature of the offences for which sentence has
been passed or risk of prejudice to public order”. Accordingly,
when deciding an application for a sentence to be suspended, the
courts were required to take only medical grounds into account and
determine whether either of the two statutory conditions applied,
namely that the prisoner's chances of survival were compromised or
his or her condition was incompatible with detention. He argued that
in the instant case the National Parole Court had reintroduced the
issue of dangerous propensity and, consequently, of prejudice to
public order, by taking into account the psychiatric report.
- The
Government explained the recent changes in the domestic legislation
and recapitulated the case-law of the Convention institutions on the
subject. They noted, firstly, that the applicant was already
suffering from the illness when he was sent to prison and that his
condition had deteriorated as result of his refusal to follow the
prescribed treatment properly. In addition, it was at the applicant's
own request that he had been held in isolation and it had not
assisted his recovery, particularly psychologically.
- The
applicant had been offered an opportunity to convalesce in the best
possible conditions as regards medication, detention and admission to
hospital when his condition required.
- He
had been offered medical care in detention or as a hospital
outpatient, depending on his state of health. For instance, he was
admitted to the Fresnes General Hospital several times in 1998 and
again from 2 to 20 June 2003, on the latter occasion for an
assessment of the changes in his general condition.
- The
Government stressed that the applicant had been convicted of major
offences and had adopted a particularly “uncooperative”
attitude in prison which had resulted in his being repeatedly
transferred from one prison to another for security reasons following
the discovery of escape plans in 1995 and again in 1996, two
attempted breakouts in 1997, and two further escape plans in 1998 and
2000. On 28 February 2003 he had taken part in a mutiny at Clairvaux
Prison.
- The
Government pointed out that despite the special security arrangements
required to accommodate him the applicant had been transferred
whenever necessary to prisons equipped to deal with his condition.
Thus, in December 1998 he had been transferred to Lannemezan Prison
after refusing to take food or his medication. In October 2000 he was
transferred to Fresnes when the doctor treating him decided that the
prison in which he was being held (Villeneuve lès Maguelonne)
was no longer equipped to provide him with the necessary care.
Similarly, in June 2003 the prison authorities had granted his
request to be moved to isolation quarters. They had also granted a
request by his partner for him to be transferred to Poissy Prison
(despite the fact that it did not normally take “particularly
high-profile” prisoners). The Government said that medical care
could be provided by the Poissy Intermunicipal Hospital.
- Relying
on various medical certificates, the Government added that the
applicant's repeated refusal to receive treatment should be taken
into account.
- As
to whether his condition was currently compatible with detention, the
Government said that, while the experts were not entirely in
agreement, they had not indicated that detention was causing any
deterioration in his health.
- Lastly,
the Government submitted that in its decision of 18 July 2003 the
National Parole Court had cited a number of factors that had been
noted in the experts' reports, namely that the treatment could only
be given in detention or in a restrictive structure, that the
treatment was simple and could be administered in a prison
environment and that the applicant continued to have dangerous
criminal propensities. Referring to the Mouisel v. France
judgment, the Government said that, by seeking, on the basis of the
2000 and 2002 Acts, a balance between “the protection of
prisoners' health and well-being” and “the legitimate
requirements of a custodial sentence”, the National Parole
Court's order for the applicant to remain in custody had been lawful
and did not violate Article 3 of the Convention.
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 of the Convention. The assessment of this minimum
level of severity 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 v.
Poland [GC], no.
30210/96, § 91, ECHR 2000-XI; and Mouisel
v. France, no. 67263/01, § 37, ECHR 2002-IX). Regard is
to be had to the particular circumstances of each specific case
(Papon v. France (no. 1) (dec.), no.
64666/01, ECHR 2001-VI).
- Thus,
the Court has been called upon to examine, inter alia, whether
it is compatible with Article 3 for the following categories of
persons to be detained: persons suffering from mental disorder (Kudła
cited above; and Keenan v. the United Kingdom, no.
27229/95, ECHR 2001-III) or serious illness (Mouisel cited
above, Matencio v. France, no. 58749/00, 15 January 2004; and
Sakkopoulos v. Greece, no. 61828/00, 15 January
2004), the disabled (Price v. the United Kingdom, no.
33394/96, ECHR 2001-VII), the elderly (Papon decision cited
above) or drug addicts suffering withdrawal symptoms (McGlinchey
and Others v. the United Kingdom, no. 50390/99, ECHR
2003-V).
- Article
3 of the Convention cannot be interpreted as laying down a general
obligation to release a detainee on health grounds or to transfer him
to a civil hospital, even if he is suffering from an illness that is
particularly difficult to treat (see Mouisel, judgment cited
above, § 40). However, this provision does require the State to
ensure that prisoners are detained in conditions which are compatible
with respect for human dignity, that the manner and method of the
execution of the measure do not subject them to distress or hardship
of an intensity exceeding the unavoidable level of suffering inherent
in detention and that, given the practical demands of imprisonment,
their health and well-being are adequately secured by, among other
things, providing them with the requisite medical assistance (see
Kudła, judgment cited above, § 94; and Mouisel,
judgment cited above, § 40).
- As
the Court noted in the aforementioned cases of Mouisel and
Matencio (at §§ 44 and 80 respectively), the
procedural arrangements introduced by the Acts of 15 June 2000 and 4
March 2002, which supplement the right to seek a Presidential pardon
on health grounds by enabling prisoners whose health has deteriorated
significantly to apply for release at short notice, may provide
sufficient guarantees to ensure the protection of prisoners' health
and well-being which States must reconcile with the legitimate
requirements of a custodial sentence.
- The
applicant has been able to make effective use of that machinery in
the present case. Although the Regional Parole Court suspended his
sentence, the National Court overruled it in reliance in particular
on the reports of the experts, Dr F. and Dr B., and of the
psychiatric expert, who noted that the applicant had “dangerous
criminal propensities”. In that connection, the Court has held
that, on the question of whether a person should remain in detention,
it is precluded from substituting the domestic courts' assessment of
the situation with its own (see Sakkopoulos, cited above, §
44), especially when, as in the instant case, the domestic
authorities have generally discharged their obligation to protect the
applicant's physical integrity, notably by providing appropriate
medical care (ibid.).
- The
Court notes that the applicant does not in fact contest the quality
of the care he has received up till now, both in prison and in the
various hospitals to which he has been admitted. Nor as he complained
of the physical conditions of his detention. It is true that he has
complained of his recent transfer to Poissy Prison, but –
irrespective of whether this was at his own or his partner's request
– he has not suggested that his detention there was ill-adapted
to his condition or the treatment of his illnesses.
- The
Court must therefore decide whether his continued detention is
compatible with Article 3 of the Convention in view of his condition.
- The
Court notes that the applicant has been suffering from Aids for
almost twenty years and has contracted a number of so-called
opportunistic infections, which currently appear either to have been
cured or stabilised, even though a recurrence obviously cannot be
ruled out.
- The
Court has examined the reports of the experts appointed in connection
with the applicant's two applications for suspension of sentence. The
three experts concerned noted that the applicant was “uncooperative”
and had refused or suspended his treatment on various occasions,
sometimes for lengthy periods.
- While
all three found that the applicant's chances of survival were
compromised in the short to medium term (since, although considerable
advances had been made in the treatment of Aids, it could not yet be
considered a wholly curable disease), they did not agree on the
compatibility of his condition and its treatment with detention. Dr
S. considered that the applicant's condition necessitated his
admission to hospital and was not compatible with detention in
prison, whereas Dr B. concluded that it was compatible with
detention, as the treatment was simple and could be administered in a
prison environment, and Dr F. concluded that (medical) care in
custody was entirely appropriate, and that compatibility with
detention was reasonable under medical supervision although it would
be more coherent for him to be detained in hospital.
- The
material before the Court also shows that the authorities are heedful
of the applicant's condition. He was admitted to Fresnes Public
Hospital from 2 to 20 June 2003 for an assessment of changes in his
general condition. The Government stated that, as additional tests
had proved negative and there was no sign of intercurrent infection,
the hospital had authorised his discharge and the applicant had
subsequently returned to prison, where the medical care he receives
was of the same quality as that available to him outside. The case
file also shows that the applicant is currently in Poissy Prison and
his medical condition is being monitored by Poissy Intermunicipal
Hospital, a civil hospital.
- In
these circumstances, on the basis of the evidence before it and
assessing the relevant facts as a whole, the Court finds that neither
the applicant's current state of health, nor his alleged distress,
presently attains a sufficient level of severity to entail a
violation of Article 3 of the Convention (see Kudła,
judgment cited above, § 99; and Matencio, judgment
cited above, § 89). In any event, should his health
deteriorate, French law empowers the national authorities to
intervene in various ways (see Papon (no. 1),
decision cited above). In particular, the applicant could make a
further application for suspension of his sentence, in which
eventuality further expert reports will be ordered.
- In
the light of the foregoing, the Court concludes that has been no
violation of Article 3 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
2. Holds that there has been no violation of
Article 3 of the Convention.
Done in English, and notified in writing on 14 December 2004,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé A.B. Baka
Registrar President
