CASE OF SLIMANI v. FRANCE [Extracts]
Preliminary objection allowed (non-exhaustion of domestic remedies);No violation of Art. 13;Violation of Art. 2 concerning the effectiveness of the investigation;Not necessary to examine Art. 3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
6. The applicant was born in 1969 and lives in Marseilles. Her late partner, Mr Sliti, born in 1958, was a Tunisian national. 7. Mr Sliti had been committed to a psychiatric hospital several times both in Tunisia and in France. 8. Mr Sliti had been sentenced to four years’ imprisonment and permanently excluded from French territory by a judgment of the Marseilles Criminal Court of 2 October 1990. The order permanently excluding him from French territory was not enforced immediately after he had served his prison sentence. 9. In 1998 Mr Sliti set fire to the applicant’s house and threatened to throw himself out of the window with their eighteen-month-old son. He was sentenced to one year’s imprisonment for this by a judgment of the Marseilles Criminal Court of 21 September 1998. After being compulsorily detained in Edouard Toulouse Hospital in Marseilles (Centre Hospitalier Edouard Toulouse – “the CHET”) between 29 July and 25 August 1998 (psychiatric department), Mr Sliti had later been transferred to Beaumettes Prison to serve the above-mentioned sentence. 10. A psychiatrist’s report ordered by the President of the Marseilles tribunal de grande instance, dated 1 September 1998 and prepared by Dr Goujon of the CHET, concluded, among other things, that Mr Sliti should undergo “long-term psychiatric treatment, or even [hospitalisation] in a psychiatric ward”. There was also a letter (dated 4 May 1999) from Dr Chabannes, a psychiatrist at the CHET, saying that Mr Sliti’s “depressive and anxious” condition had made it necessary to keep him in hospital for some twenty days in September 1998, his “suicide threats suggest[ing] that he might harm himself”. A medical certificate dated 9 February 1999 and issued by the same doctor contained the following observations: “ ... [Mr Sliti], whose condition is currently stable ... is being treated with a combination of anti-depressants, tranquillizers and neuroleptics. It is in [his] best interests to continue receiving psychiatric care once he is released especially [as he] has himself requested psychiatric support. One of the practitioners at Edouard Toulouse Hospital will continue to act as his responsible medical officer”. The medical treatment prescribed to Mr Sliti before his placement in administrative detention was composed of the following anti-depressants, neuroleptics and tranquillizers: Lysanxia - 40 mg (two tablets every 24 hours), Deroxat - 20 mg (one tablet every 24 hours), Phenergan (four tablets every 24 hours) and Risperdal - 2 mg (two tablets every 24 hours). 11. On 22 May 1999 the Bouches-du-Rhône Prefect decided to enforce the order that had been made on 2 October 1990 permanently excluding Mr Sliti from France and ordered him to be deported to Tunisia. To that end he ordered Mr Sliti to be held in Marseilles-Arenc Administrative Detention Centre until 24 May 1999. Mr Sliti was still receiving medical treatment, as evidenced by a prescription made out by Dr Chabannes on 21 May 1999. At Marseilles-Arenc Detention Centre the police took responsibility for fetching the medicine prescribed to Mr Sliti and giving it to him. 12. In an order of 24 May 1999 the President of the Marseilles tribunal de grande instance extended the detention order in Arenc to 10 p.m. on 26 May 1999 pending issue of a cross-border pass. An appeal lodged on 25 May 1999 was dismissed on 26 May 1999 by an order of the President of the Court of Appeal on the grounds that the procedure had been lawful and that “Mr Sliti [had] been removed that day [so that] the administrative detention measure had been lifted and the appeal therefore [had to be] declared devoid of purpose”. 13. In the morning of 26 May 1999 Mr Sliti twice refused to take his medicine. He was not examined by a doctor despite – according to the Government’s memorial – having been in a state of extreme agitation. At about 10.30 a.m. he was taken ill and collapsed. After being alerted by other detainees, police officers on duty at Arenc quickly arrived on the premises and turned him onto his side in the recovery position before alerting the Navy firefighters (marins-pompiers). At about 10.45 a.m. the Navy firefighters doctor gave him first aid. He observed that he had fallen into a coma and administered medical treatment on the premises. A 12.15 p.m. Mr Sliti was taken to Conception Hospital in Marseilles where he was admitted to the intensive care unit at approximately 12.50 p.m. He died there at 2.50 p.m. 14. On 26 May 1999 an inquest was commenced in accordance with Article 74 of the Code of Criminal Procedure (CCP) “to determine the causes of the death” of Mr Sliti. On 27 May 1999 the investigating judge sent instructions to Marseilles Central Police Station to pursue the inquiry and, to that end “take evidence from any relevant witnesses capable of providing information, make all necessary findings, investigations, lawful searches wherever necessary, and seize any items necessary for establishing the truth” and “send ... any necessary requests to any public authorities or private bodies, any civil servants and public or ministerial officers, and more generally any persons capable of providing information or documents that will assist in establishing the truth”. An autopsy was carried out on 27 May 1999. The autopsy report, of the same date, made the following conclusions: “The examination and autopsy of Mr Moshen Sliti’s body show: – signs of resuscitation. The mark observed in the left abdominal region may have been left by cardiopuncture. This needs to be confirmed by an anatomicopathological examination of the heart and an examination of the medical file. – no suspicious signs suggesting violence. – diffused polyvisceral hyperaemia. – the presence of abundant spume in the trachea and bronchi and of macroscopic heart transformations that may indicate acute cardiorespiratory failure, subject to confirmation by expert anatomicopathological and toxicological opinion”. On 27 May 1999, on the basis of the above-mentioned instructions, a senior police officer heard evidence from two police officers who had been on duty at Arenc during the morning of 26 May 1999. On 28 May 1999 he heard evidence from the deceased’s uncle and on 3 June 1999 the Navy firefighters doctor who had treated Mr Sliti after he had been taken ill. On 31 May 1999 another police officer heard evidence from two persons who had been detained at Arenc at the time of the events (Mr T.S. Smain and Mr E. Louis) and were eyewitnesses to them. The records of these interviews show that about ten people had been in the vicinity of the place where Mr Sliti had been taken ill and had been present during the events. They also show that Mr Sliti had already been in a state of agitation the day before the events in question occurred. Further medical samples were taken from the victim’s body on 15 June 1999. 15. An anatomicopathological examination of swabs taken from Mr Sliti’s body was carried out on 15 October 1999 by Dr H.P. Bonneau, who had been appointed for the purpose by the investigating judge. He made the following conclusions in his report: “Anatomicopathological examination of the autopsy swabs (treated with formalin) showing an acute pulmonary oedema, the cause of Mr Sliti’s death. The aetiology of this acute pulmonary oedema must be compared with the facts in the expert toxicological report. The other organs are histologically normal.” The investigating judge ordered a toxicologist’s report (orders of 31 May and 15 June 1999) and appointed Dr M. Fornaris to prepare it. She carried out her examination on 20 June 2000 and made the following conclusions in her report, dated 19 July 2000: “... the toxics found all result from medication; they are present in various pathologies (anxiety, pain, convulsions...). They do not appear likely, either inherently or by their association or level in the blood (at the time of death, or even when the first disorders were felt) to have been the direct cause of the death or to have contributed to its occurrence.” 16. The applicant unsuccessfully requested access to the autopsy and toxicology reports. She was never interviewed by the investigating judge and was excluded from the investigation. On 22 April 2000 she asked the investigating judge to send the investigation file to the public prosecutor for a supplementary application to be made extending the investigation to include a count of manslaughter. As the investigating judge did not reply within one month, on 24 May 2000 she addressed her request to the President of the Indictment Division of the Aix-en-Provence Court of Appeal under Article 81 of the CCP. Her request was declared inadmissible by an order of 29 May 2000 on the ground, inter alia, that “in the proceedings to investigate the causes of death, Ms Slimani does not have standing to request investigative measures”. 17. In orders of 6 and 20 November 2000 the investigating judge appointed Doctor Boudouresques and Doctor Romano to carry out the following instructions: “Consult Mr Sliti’s medical file at Conception Hospital and the attached copies of the procedural documents. (i) Determine the cause of Sliti Moshen’s death and establish, inter alia, whether the treatment administered was in conformity with current medical knowledge. (ii) Describe the medical infrastructure of the Marseilles Arenc Centre and state whether it complies with the laws and regulations in force. In the event that you find deficiencies or anomalies, give details of these in your report and indicate the persons or persons who may be deemed responsible from a medical point of view. You may question anyone whose evidence you consider helpful and request from any public or private establishment any documents that you consider it necessary to consult. You are asked to make any observations that may assist in establishing the truth.” The report, dated 2 May 2001, described the medical infrastructure of the Arenc Centre as it was on 17 March 2001. It stated that “prior to September 2000, no medical structure existed[;] medicines were distributed to detainees by police officers”. Regarding the cause of death, it made the following observations among others: “ ... The various evidence suggests that the treatment given to Mr Sliti was administered between 15 and 20 minutes after he was taken ill. The description of the clinical disorders presented by Mr Sliti corresponds to generalised and recurring epileptic fits, thus an epileptic condition. This epileptic condition can be regarded as inaugural in so far as Mr Sliti had no known epileptic history. It is possible that the refusal to take his medicine (we are thinking in particular of the Benzodiazepines: 80 mg of Lysanxia) contributed to the onset of this epileptic condition. Regarding the results of the toxicological analysis, no toxic substance other than a medicinal one has been found. Moreover, according to the toxicology report these medicinal substances do not appear, inherently, by their association or level in the blood, to have caused the death or to have contributed to its occurrence. The treatment administered by the Navy firefighters doctor at Arenc Centre is that habitually given in cases of epilepsy. The treatment included the prescription of anticonvulsive drugs and then, when these proved ineffective, barbiturates. A tube was inserted into the trachea. The patient was given medical treatment at Arenc Centre for one and a half hours before being taken to Conception Hospital in Marseilles at approximately 12.15 p.m. After being treated with barbiturates he stopped having convulsions, whereupon it was possible to transfer him. According to Dr F. Topin, there was no sign of heart failure. The treatment administered first by the Navy firefighters doctor and then in the multi-purpose intensive care unit at Conception Hospital is that habitually proposed in this type of medical emergency. Despite being resuscitated very quickly and efficiently by means of intubation, artificial respiration, drip, external heart massage, with alkalinisation, Mr Sliti suffered a cardiac arrest resulting in his death at approximately 2.50 p.m. The treatment administered at Arenc Detention Centre on 26 May 1999 and the immediate intervention of the officers at approximately 10.30 a.m., the rapid intervention of the SAMU [Mobile Emergency Medical Service] owing to the efficiency of the police officers present on the premises[,] at approximately 10.45 a.m. the provision of emergency medical treatment (full clinical examination, an electrocardiogram, insertion of a catheter, with the use of medication appropriate to an epileptic condition, insertion of tube in trachea), the conditions of transfer to Conception Hospital in Marseilles, the treatment administered by the intensive care unit at Conception Hospital were in conformity with current medical knowledge. The analysis of the toxicologist’s report made by Mrs M. Fornaris on 20 July 2000 does not allow identification of any toxic substance that might have caused the death. The autopsy of Mr Mohsen (sic) Sliti’s body showed both signs of resuscitation, and in particular cardiopuncture, and the presence of large quantities of spume in the trachea of the bronchi and macroscopic heart transformations suggestive of acute cardiorespiratory failure. Lastly, the anatomicopathological examination performed by Dr H.P. Bonneau on 15 October 1999 showed an acute pulmonary oedema as the cause of Mr Sliti’s death. Conclusion: The cause of Mr Sliti Mohsen’s (sic) death was a cardiac arrest following an acute pulmonary oedema (acute failure of left auricle) after an inaugural epileptic condition (possibly induced by Mr Sliti’s refusal to take his usual treatment). The treatment administered was done so in accordance with current medical knowledge (at Arenc Detention Centre by the SAMU and then at Conception Hospital)”. 18. On 26 June 2001 the public prosecutor discontinued the proceedings “in the light of the conclusions of the medical experts” and “the lack of any evidence of a crime or major offence as the cause of death”. 19. On 21 February 2003 the applicant, acting on behalf of herself and her children, applied to the Minister of the Interior for compensation. She based her claim on the documents produced by the Government in the proceedings before the Court, stating that she had not previously had access to them. In her submission, they showed that “the death of Mr Sliti [was] the consequence of a serious breakdown in the operation of the service at Arenc Detention Centre”. She complained, in particular, of insufficient medical facilities and staff at the material time. 20. Article 74 of the CCP provides: “On discovery of a dead body, regardless of whether the deceased suffered a violent death, but wherever the cause of death is unknown or suspicious, the senior police officer who is advised thereof shall immediately notify the public prosecutor, promptly visit the place of discovery and make initial observations. The public prosecutor shall visit the place if he deems it necessary and shall call on the assistance of persons qualified to assess the circumstances in which death occurred. He may, however, delegate those tasks to a senior police officer of his choice. Except where their names appear in one of the lists provided for in Article 157, persons appointed in this way shall take a written oath to assist the courts on their honour and according to their conscience. The public prosecutor may also call for an inquest to determine the causes of death.” Article 80-4 CCP, which was added to the Code of Criminal Procedure by Law no. 2002-1138 of 9 September 2002 (Official Journal of 10 September 2002), is worded as follows: “... The members of the family or the close relatives of the deceased or missing person may apply to join the criminal proceedings as a civil party seeking damages. However, if the missing person is found, the latter’s address and other matters that would lead to the direct or indirect disclosure of this address may not be revealed to the civil party without the consent of the party concerned if he is an adult or with the consent of the investigating judge in the case of minors or of adults under a guardianship order.” 21. Article 85 of the CCP provides: “Anyone who claims to have suffered damage as a result of a serious crime or serious offence may, by lodging a criminal complaint, join the criminal proceedings as a civil party on application to the relevant investigating judge.” 22. Part of the report is devoted to “administrative detention centres for foreign nationals”. Paragraph 202 is worded as follows: (Unofficial translation) “..., the holding conditions at Marseilles-Arenc Administrative Detention Centre left a lot to be desired. The material conditions were mediocre and the foreign nationals were given no opportunity to take any walks outside throughout the entire duration of their stay. Furthermore, there was no provision for any specific medical attention or nursing cover. In addition to the difficulties in seeing a doctor, the situation inevitably gave rise to unacceptable consequences from a medical-ethics standpoint. Lastly, the delegation found that the detainees were insufficiently informed about their rights and obligations and that the procedure for placing detainees in isolation needed to be clarified. The delegation expressed its serious concerns about Marseilles-Arenc Administrative Detention Centre at the end-of-visit interview. Subsequently, the French authorities informed the CPT of a series of measures designed to improve health and safety at Marseilles-Arenc Administrative Detention Centre and the medical care of detainees; measures were also taken with regard to informing detainees about their rights and the applicable procedure in the event of placing a detainee in isolation. That being said, the French authorities indicated that it was undeniable that the building was ill-adapted to the needs of the centre. The CPT expressed its satisfaction with the speed at which the authorities reacted to the delegation’s observations. The Committee pointed out, however, that it was unacceptable for detainees to be deprived of any opportunity to take exercise outside during prolonged periods and that a day nurse should be present inside the centre. It accordingly recommended that the French authorities take appropriate measures immediately in those two respects. More generally, the CPT asked the French authorities to reconsider setting up a new detention centre in Marseilles”. 23. The relevant paragraphs of this report are the following: (Unofficial translation) “59. With the exception of the Marseilles-Arenc Administrative Detention Centre, access to a doctor and medical care in the places visited in May 2000 could be deemed satisfactory. In particular, in all these establishments access to a doctor and medicines was free of charge for the foreign nationals concerned. ... 60. As in 1996, the situation at Marseilles-Arenc was still unacceptable, however, from the medical-ethics and – it has to be added – human standpoint. In July 1998 the organisation Médecins du Monde terminated the Mutual Assistance Agreement for the Medical Care of Detainees. The organisation SOS Médecins, for its part, agreed to visit the Centre only in exceptional circumstances. The delegation heard widespread complaints from detainees who, on asking to see a doctor, were told by police officers that they had to be able to pay. Some also complained that their medicine supplies (for example, maintenance or medicine for asthma sufferers) were about to run out. In addition, since the ad hoc agreement has still not been signed, no nurse was present. Nor did the centre have a single first-aid kit (not even dressings) and medicines, kept in a cardboard box, were distributed by surveillance staff in accordance with the needs expressed by the detainees. In response to the delegation’s immediate observation, the French authorities have informed the CPT that an agreement on the provision of health services was signed on 14 June 2000 between the Bouches-du-Rhône Prefect and the Marseilles public hospitals authority. From 1 September 2000 there will be nursing cover at the centre seven days a week and a doctor in attendance half time. The CPT wishes to express its satisfaction with the measures taken.”