CASE OF MOUISEL v. FRANCE
Violation of Art. 3;Non-pecuniary damage - financial award
Christos Rozakis
7. The applicant was born in 1948 and lives in Fougaron. 8. On 12 June 1996 the Haute-Garonne Assize Court sentenced the applicant to fifteen years' imprisonment for armed robbery carried out as part of a gang, false imprisonment and fraud. He was detained in Lannemezan Prison (département of Hautes-Pyrénées). 9. In late 1998 his health deteriorated. 10. On 8 January 1999 a doctor from the Outpatient Consultation and Treatment Unit (unité de consultation et de soins ambulatoires – “the UCSA”) at Lannemezan Prison issued a medical certificate, which stated: “This patient has a history of serious [medical] problems ... He was recently found to have B-cell chronic lymphocytic leukaemia, with some evidence of tumour ... The leukaemia is currently not accompanied by any alteration of the other cell lines; in particular, there is no sign of anaemia or thrombocytopenia. However, bilateral axillary adenopathy is present, predominantly on the right-hand side. This certificate has been issued at the patient's request and handed to him in connection with an application for parole on medical grounds.” 11. On 30 September 1999 a further medical report stated: “This patient has chronic lymphocytic leukaemia, which has caused severe asthenia. Furthermore, there are signs of orthopaedic disorders as a result of an injury to the left knee and the left ankle causing osteoarthritis of the left patellofemoral and tibiofemoral joints and making it painful for him to remain for long periods in a seated position with his legs bent. In addition, on account of the orthopaedic disorders observed in his left lower limb, the patient has to use a walking stick to move about. His condition is not compatible with the use of restraints on his lower limbs.” 12. On 6 December 1999 the UCSA doctor advised against applying restraints to the applicant's lower limbs. 13. The applicant applied to the French President for a pardon on medical grounds, but his application was refused on 7 March 2000. 14. On 31 March 2000 International Prison Watch (IPW) issued the following press release: On 7 March 2000 the Minister of Justice refused applications for a pardon lodged on behalf of a prisoner suffering from a rapidly progressive disease. 52-year-old Jean Mouisel is currently in Lannemezan Prison. He was diagnosed with chronic lymphocytic leukaemia in November 1998. Jean Mouisel has served two-thirds of his sentence. If remissions of sentence are taken into account, he will be due for release in 2002. On 24 February 2000 a doctor from the UCSA at Lannemezan Prison drew up a certificate attesting that the disease was transforming into lymphoma and that an extended course of cancer treatment involving chemotherapy was therefore necessary. This prisoner is taken to hospital once a week and has to endure his illness while in detention. He is allowed only one visit a week from his relatives, in accordance with the prison's rules. His doctor and various associations applied for a pardon on his behalf. The Ministry of Justice, which centralises such applications and takes an initial decision, did not see fit to refer his case to the President's Private Office. IPW wishes to stress that 'no one shall be subjected to torture or to inhuman or degrading treatment or punishment' (Article 3 of the European Convention on Human Rights).” 15. On 12 May 2000 the UCSA doctor drew up a further medical certificate, which stated: “This patient has chronic lymphocytic leukaemia, which was diagnosed in November 1998 and is currently transforming into lymphoma. The lymphoma was diagnosed in early February 2000 during a check-up at the haematology department at Purpan Hospital in Toulouse. Mr Mouisel's condition currently requires him to undergo cancer treatment in the form of chemotherapy sessions as a hospital outpatient every three weeks. At the moment, he is receiving chemotherapy at Lannemezan Hospital's medical and surgical centre. The patient's haematological condition will need to be reassessed in early August 2000 once he has finished the chemotherapy he is currently receiving. It is subsequently envisaged that he will begin oral chemotherapy, depending on the reassessment to be carried out at Toulouse University Hospital. The compatibility of his condition with his continued detention remains to be determined by an expert.” 16. On 3 June 2000 the applicant wrote to tell the prison governor about a chemotherapy session that had taken place at Lannemezan Hospital on 30 May 2000: “... After an hour and forty-five minutes, the force of my drip was causing me too much pain. My suffering was so great that I had to lower the speed of the drip. That action was not appreciated by the warder in charge of my escort, Mr T., who came into the room red with anger, yelling and screaming. He told me that if the nurse had turned the drip on full, then I was not to touch it. As he put it, 'he and the other member of the escort were not going to spend all day at the hospital'. I was surprised at how aggressive they were being towards me, and I wanted to pull out the drip. The pain was too intense; it was making me suffer and was becoming unbearable ... The intervention of the doctor and nurse ... persuaded me to end the chemotherapy session. After the doctor had gone, the chief escort officer told me that the matter would be dealt with when we got back to the prison. At the end of the chemotherapy session, I felt worse than ever as the injection had made me feel much weaker ... I was duly handcuffed and dragged with brute force along the hospital corridors on a chain which the warder was holding, no doubt as a form of retribution. When we got back that morning, I was handcuffed in the usual way without force. I am being treated for leukaemia, a cancer of the blood which is nothing like a mere case of the flu! In my case, unfortunately, there is no possible cure; the disease I have caught here at Lannemezan Prison is incurable. I am therefore entitled to conclude that the prison staff who escort me to the hospital regularly ask the nurses to make sure that I am injected as quickly as possible so that they do not have to spend all day waiting around for me. As there is currently no way of solving the problem on an administrative level, I shall have to give up the chemotherapy sessions for the time being. I am not refusing the treatment, but the conditions in which I am receiving it are not satisfactory ... This has been going on for several months and I cannot stand it any longer. My physical condition cannot allow it and my morale is getting lower every day. I am dying, but I would like to die peacefully and not in an atmosphere of conflict.” 17. Following a further application for a pardon on medical grounds, the Ministry of Justice instructed an expert at the Pau Court of Appeal to assess the applicant's state of health, the treatment he required and the manner in which it should be administered, the likelihood of any changes (for example, regarding life expectancy), and whether his condition and the forms of treatment in progress or envisaged were compatible with detention in a specialist unit. The expert's report, completed on 28 June 2000, read as follows: “... Recent developments According to the certificate of 12 May 2000, Mr Mouisel has a form of chronic leukaemia which was diagnosed in 1998 and is currently transforming into lymphoma ... His condition has necessitated an intensive course of chemotherapy administered following the insertion of a 'portacath'. His condition has also required him to be taken to hospital in a non-emergency ambulance for chemotherapy sessions (at the outpatient department of Lannemezan Hospital's medical and surgical centre), initially every week and subsequently every three weeks ... Clinical condition on the date of the examination Functional symptoms complained of by the patient: – permanent asthenia and fatigue; – waking up in pain during the night; – ... – muscle fatigue and breathlessness; – alleged psychological impact of stress on his life expectancy and deterioration of his health (this condition has led to his being prescribed a course of antidepressants, which he is currently taking) ... It should be noted that these functional symptoms are to a large extent attributable to the chemotherapy he has been undergoing ... Particular mention should be made of a problem relating to the escort and supervision arrangements during visits to hospital for chemotherapy sessions. Indeed, since 20 June 2000 the patient has not consented to treatment. Clinical examination ... It should be noted that, according to the documents produced, Mr Mouisel's current degree of disablement was assessed at 80% by the COTOREP [Occupational Counselling and Rehabilitation Board] in a decision of 6 April 2000, and he was awarded a disabled adult's allowance for the period from 2 February 1999 to 2 February 2001. Conclusion By the date of the examination the applicant's health had deteriorated as a result of the progression of his haematological disorder, diagnosed in November 1998 as leukaemia ... Mr Mouisel is currently undergoing intensive chemotherapy as an outpatient at Lannemezan Hospital, where he is taken for treatment every three weeks by medical transport (a non-emergency ambulance). The cancer treatment, ... which is already scarcely compatible with imprisonment, is at present causing problems as a result of the position he has adopted recently in not consenting to treatment in the conditions in which he is currently being detained (this has lasted since 20 June 2000, the date scheduled for his treatment). His not consenting to treatment, in spite of all the information received from the UCSA medical team in Lannemezan, is likely to bring about the rapid progression of the disorder observed recently and a reduction in his life expectancy. Accordingly, he should be looked after in a specialist unit.” 18. On 19 July 2000 the applicant was transferred as a matter of urgency to Muret Prison (so that he would be nearer to Toulouse University Hospital) and given a cell of his own. 19. On 3 October 2000 the applicant applied to the département of Haute-Garonne's Health and Social Affairs Department for acknowledgment of a vaccination-related accident, claiming that he had contracted cancer as a result of a hepatitis-B vaccination. On 24 October 2000 he received a reply from the Ethics and Law Office of the Ministry of Social Affairs and Solidarity informing him that strict liability could not be imposed on the State except for damage sustained as a result of the compulsory vaccinations provided for in the Public Health Code. Hepatitis-B vaccinations were compulsory only for certain occupational groups exposed to a risk of contamination, and the applicant did not belong to any such group. 20. On 14 November 2000 the applicant was notified of a reply by the Regional Director of the Prison Service to his complaints concerning the application of Article 803 of the Code of Criminal Procedure (“the CCP”) on the use of handcuffs or restraints (see “Relevant domestic law and practice” below): “... The provisions of the Article do not establish an absolute prohibition on the use of handcuffs or restraints and do not expressly refer to the detainee's health. They leave the matter to the discretion of those responsible for laying down, and enforcing, security measures: gendarmes, police officers or prison warders. Moreover, Article D 283 CCP provides that handcuffs or restraints are to be used solely in connection with 'precautions against absconding', except where a person is being brought before a judicial authority. Where a long sentence is being served for criminal acts causing bodily harm, the appropriate measures are applied.” 21. On 20 November 2000 the Minister of Justice refused an application for a pardon lodged on the applicant's behalf by the Ligue des droits de l'homme (Human Rights League). 22. On 24 November 2000 the applicant received a letter from the doctor who had treated him in Lannemezan: “... As regards your condition, there does seem to be a change taking place at the moment ... I think it is always worth fighting an illness, whatever it may be; even if there is no possible cure, a remission in the disease is still possible, especially as Dr N. is offering you a new course of chemotherapy, which I would strongly advise you to agree to ...” 23. A medical certificate issued on 21 February 2001 by a doctor from the haematology department at Toulouse Hospital reads as follows: “Mr Mouisel has been treated by our department since February 2000 for chronic lymphocytic leukaemia, initially with tonsillar hypertrophy on both sides causing dysphagia, and substantial axillary adenopathy on the right-hand side (15 cm in diameter). He was initially given chemotherapy once a week using the COP protocol, then once a month with CVP, and subsequently with chlorambucil. The results obtained were satisfactory, but in November 2000 we noticed a renewed increase in the size of the right axillary adenopathy and therefore resumed monthly chemotherapy using the CVP protocol. A biopsy of the lymph nodes in January revealed the presence of Hodgkin's disease. Three cycles of chemotherapy using the ABVD protocol are therefore envisaged, followed by additional radiotherapy.” 24. In an order of 22 March 2001 the judge responsible for the execution of sentences at the Toulouse tribunal de grande instance released the applicant on parole until 20 March 2005, subject to an obligation to receive medical treatment or care: “Admissibility Mr Mouisel exercises parental responsibility over his daughter, born on 4 September 1993 ..., and no ancillary penalties have been imposed on him entailing the forfeiture of that right. Article 729-3 CCP empowers the judge responsible for the execution of sentences to decide cases concerning prisoners who have less than four years of their sentence to serve and who exercise parental responsibility over a child under the age of 10. Merits It appears from the medical certificates adduced in evidence (dated 7 December 2000 and 3 January and 21 February 2001) that the applicant's condition has become incompatible with his continued detention, on account of the medical care he requires during regular visits to hospital. It is therefore appropriate, notwithstanding his criminal record, to release the applicant on parole, subject to his staying at his wife's home (see the declaration of 30 January 2001) and receiving treatment in accordance with a medical protocol at Purpan Hospital. ...” 25. French National Assembly – Report drawn up on behalf of the Commission of Inquiry on the situation in France's prisons (vol. I, p. 249, 28 June 2000) Extract from Part V (“Controlling the prison population: an essential goal”): “A. Stemming the influx (1) Limiting the imprisonment of certain groups ... (e) Sick or elderly prisoners The increasing number of elderly prisoners has already been noted; at the end of 1999 there were 1,455 prisoners over the age of 60, a figure which has almost doubled in four years. This upsurge is linked, in particular, to the rise in the number of convictions for sexual harassment, rape and incest. The inadequate provision of care for those prisoners and, more broadly, for prisoners who are seriously ill or dependent has also been discussed. The presence of such persons in prison raises the very real issue of their dying there. Warders and other inmates are not prepared for that eventuality and no proper arrangements are in place for assisting prisoners in their final moments. Dying in prison means experiencing a feeling of hopeless solitude. It amounts to an admission of failure and waste for families unable to be present as the end approaches. All prison staff try, wherever possible, to transfer inmates to hospital in their final days; however, this again raises the issue of escort officers and the difficulty of calling on the services of the police or the gendarmerie. Mention has also frequently been made of the attitude of doctors, who all too often send patients back to prison once the alert is over, just as easily as though they were returning home. One case in Caen where a doctor sent the patient back to prison only for him to die two days later seems to have had a particularly profound effect on prison staff. There is no dignity in dying in prison. The question therefore arises whether the sick or the elderly should continue to be detained. Currently, the President alone is empowered to grant a pardon on medical grounds. However, it appears that this measure is recommended sparingly and granted even more cautiously; in 1998 twenty-seven such applications were referred to the President and pardons were granted in fourteen cases, while in 1999 eighteen out of thirty-three proposals resulted in a pardon. ... Indeed, a review of the procedure for granting pardons on medical grounds would appear necessary; there is no reason why such decisions should continue to be left to the President. Responsibility for the procedure should be vested in the judge for the execution of sentences, who could base his decision on expert medical assessments in which it was concluded that the prisoner was suffering from a life-threatening illness.” 26. The Code of Criminal Procedure (CCP) (i) Since the Law of 18 January 1994 came into force the provision of treatment for prisoners has been the responsibility of the public hospital service. Accordingly, prisoners receive treatment from medical units that are set up within prisons and are directly attached to the nearest public hospital (Article D 368). (ii) The CCP contains the following provisions on parole: “At each prison the judge responsible for the execution of sentences shall determine the principal terms of detention for each convicted person. Subject to the limits and conditions prescribed by law, he shall grant ... parole ... Except in urgent cases, he shall give his decision after hearing the opinion of the Sentences Board ... ...” (Law no. 2000-516 of 15 June 2000, applicable from 1 January 2001) “Measures entailing ... parole shall be granted, deferred, refused, withdrawn or revoked in a reasoned decision by the judge responsible for the execution of sentences, who shall examine the case of his own motion, at the request of the convicted person or on an application by the public prosecutor ...” (Law no. 2000-516 of 15 June 2000) “Parole is designed to encourage the rehabilitation of convicted prisoners and prevent them from reoffending. Convicted persons serving one or more prison sentences may be granted parole if they have made serious efforts to readjust to society, particularly if they can show that they have engaged in occupational activities, or regularly attended an education or vocational training course, or have taken part in a work-experience scheme, or had a temporary contract of employment with a view to their social integration, or that their presence is essential to the life of their family, or that they have to undergo treatment ...” (Law no 92-1336 of 16 December 1992) “Subject to Article 132-23 of the Criminal Code, parole may be granted if the length of the sentence already served by the prisoner is at least equal to that remaining to be served. However, reoffenders ... may only be granted parole if the length of the sentence already served is at least double that remaining to be served. ...” (Law no. 2000-516 of 15 June 2000) “Parole may be granted to any person who has been sentenced to a term of imprisonment of four years or less, or who has four years or less of his or her sentence to serve, where the person exercises parental responsibility over a child under the age of 10 who habitually lives with him or her. ...” “Where a prison sentence of ten years or less has been imposed, or where, regardless of the length of the sentence initially imposed, the portion remaining to be served amounts to three years or less, parole shall be granted by the judge responsible for the execution of sentences, in the manner prescribed in Article 722. In other cases, parole shall be granted by the regional parole court, in the manner prescribed in Article 722-1. ...” A circular of 18 December 2000 (CRIM 00-15 F1), outlining the provisions of the Law of 15 June 2000 on reinforcing the presumption of innocence and victims' rights in relation to the enforcement of sentences, states: “Under the new Article 729-3 ..., parole may be granted to any person who has been sentenced to a term of imprisonment of four years or less, or who has four years or less of a sentence to serve, where that person exercises parental responsibility over a child under the age of 10 who habitually lives with him or her. ... Those provisions do not invalidate the general requirement in Article 729 whereby the judge responsible for the execution of sentences must assess whether serious efforts have been made to readjust to society. They do not therefore imply that the granting of parole for which they provide is systematic. However, depending on the length of the initial sentence, they may allow prisoners to be released at an earlier stage than would be possible under that Article. ...” The provisions in question increase the powers of the judge responsible for the execution of sentences with regard to parole and are designed to counter long-standing criticism of the fact that French law previously made no provision for the early release of terminally ill prisoners, other than by means of an application for a pardon on medical grounds at the discretion of the French President (Articles 17 and 19 of the Constitution). (iii) A law of 4 March 2002 on patients' rights and the quality of the health system supplements the CCP and adds a new Article 720-1-1 providing for the possibility of suspending a sentence “regardless of the nature of the sentence or the portion remaining to be served ... where it has been established that the prisoner has a life-threatening illness or that his or her state of health is incompatible in the long term with continued detention, save in cases where persons detained in a psychiatric institution are admitted to hospital”. The judge may direct that the sentence be suspended indefinitely. He must arrange for two expert assessments in order to determine whether a sentence should be suspended or whether a suspension should be lifted. (iv) Article 803 CCP provides: “No one may be forced to wear handcuffs or restraints unless he is considered either a danger to others or to himself, or likely to attempt to abscond.” A general circular on that Article (C 803 of 1 March 1993) states: Except in special circumstances, persons being detained by the police after voluntarily surrendering to custody, persons whose mobility is impaired on account of their age or health and persons sentenced to only a short term of imprisonment are unlikely to pose the dangers referred to in the Law. ...” 27. Report to the Government of the French Republic on the visit to France by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 14 to 26 May 2000 Although the quality of the material conditions of detention at Lannemezan Prison was found to be high (see paragraph 78 of the report), transfers to outside hospitals continued to cause the CPT concern during its prison visits: “In spite of the recommendations made by the CPT in paragraph 144 of its report on the 1996 visit, the delegation that carried out the visit in 2000 has again obtained information (especially in Lyons) suggesting that the conditions in which detainees are transferred to hospital and examined and treated there are in breach of medical ethics: patients are systematically handcuffed with force, regardless of their state of health or age, are examined and treated in the presence of law-enforcement officials, and are physically attached to their hospital beds. In this connection, the French authorities have pointed out that they have drawn up a draft circular to promote the application of the principle that handcuffs or restraints are to be used in exceptional cases only. The CPT recommends that the adoption of the circular be expedited and that the document contain express reference to the recommendations set out in paragraph 144 of its report on the 1996 visit, namely: – that all medical check-ups, examinations and treatment in public hospitals take place out of the hearing and – unless the medical staff concerned request otherwise in a given case – out of the sight of law-enforcement officials; – that the practice of attaching prisoners to their hospital beds for security reasons be prohibited. ... The CPT calls upon the French authorities to complete the implementation of the national hospitalisation scheme as soon as possible in order to ensure that, throughout the country, prisoners are provided with hospital treatment in conditions that comply with medical ethics and respect human dignity.” (paragraph 105 of the report) 28. Third General Report on the CPT's activities covering the period 1 January to 31 December 1992 (Section III – Health care services in prisons) “(iv) prisoners unsuited for continued detention Typical examples of this kind of prisoner are those who are the subject of a short-term fatal prognosis, who are suffering from a serious disease which cannot be properly treated in prison conditions, who are severely handicapped or of advanced age. The continued detention of such persons in a prison environment can create an intolerable situation. In cases of this type, it lies with the prison doctor to draw up a report for the responsible authority, with a view to suitable alternative arrangements being made.” 29. 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 (adopted on 8 April 1998) “C. Persons unsuited to continued detention: serious physical handicap, advanced age, short term fatal prognosis 50. Prisoners with serious physical handicaps and those of advanced age should be accommodated in such a way as to allow as normal a life as possible and should not be segregated from the general prison population. Structural alterations should be effected to assist the wheelchair-bound and handicapped on lines similar to those in the outside environment. 51. The decision as to when patients subject to short term fatal prognosis should be transferred to outside hospital units should be taken on medical grounds. While awaiting such transfer, these patients should receive optimum nursing care during the terminal phase of their illness within the prison health care centre. In such cases provision should be made for periodic respite care in an outside hospice. The possibility of a pardon for medical reasons or early release should be examined.” 30. Recommendation Rec(2000)22 of the Committee of Ministers to the member States on improving the implementation of the European rules on community sanctions and measures Appendix 2: guiding principles for achieving a wider and more effective use of community sanctions and measures: “Legislation 1. Provision should be made for a sufficient number of suitably varied community sanctions and measures of which the following are examples: ... – suspension of the enforcement of a sentence to imprisonment with imposed conditions; ...”