CASE OF RENOLDE v. FRANCE
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (procedural aspect);Violation of Art. 3 (substantive aspect)
Isabelle Berro-Lefèvre;Jean-Paul Costa;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
5. The applicant was born in 1962 and lives in Chatou. 6. 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. 7. Joselito Renolde was separated from his former partner, with whom he had two children. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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.” 13. 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. 14. 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. 15. 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. 16. 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.” 17. 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. 18. The disciplinary board found it established that physical violence had been used, entailing disciplinary offences punishable under Article D. 2491 and Article D. 2492, 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. 19. 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.” 20. The letter was sent on 10 July 2000 (date of the postmark). 21. 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.” 22. 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. 23. 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. 24. 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. 25. 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. 26. 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. 27. 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. 28. On 21 July 2000 a forensic medical examiner conducted an autopsy and reached a finding of suicide by hanging. 29. 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. 30. The warders who had been present on the scene, the medical staff and the prisoners placed in solitary confinement in neighbouring cells were questioned. 31. 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.” 32. 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.” 33. 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.” 34. 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”. 35. Mr B., a psychiatric nurse, stated that Joselito Renolde had not displayed an attitude suggesting that he might not take his medication. 36. 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. 37. Joselito Renolde’s former girlfriend, who was likewise questioned, stated that he had been admitted to psychiatric institutions on several occasions. 38. 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. 39. 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. 40. 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.” 41. The civil parties were interviewed by the investigating judge on 23 May 2001. 42. 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. 43. 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.” 44. 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. 45. 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. 46. In an interlocutory judgment of 29 March 2002 the Investigation Division ordered additional inquiries and appointed one of its judges to conduct them. 47. On 14 January 2003 the judge requested a copy of the file on the investigation in respect of Joselito Renolde. 48. 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. 49. 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. 50. 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. 51. The submission of the findings of the additional inquiries was noted in a judgment of 11 June 2004. 52. A hearing before the Investigation Division was held on 12 January 2005. 53. 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 1213, 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 1213, 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. 54. 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 ...” 55. 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: “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 ...” “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 ...” 56. 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). 57. 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. 58. 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. 59. 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.” 60. 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). 61. 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.” 62. 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 ...” 63. 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). 64. 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. ...” 65. 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. ...”