EHRM, 16-10-2008, nr. 5608/05

Joselito Renolde was separated from his former partner, with whom he had two children.

On 12 April 2000 he was placed under investigation by the investigating judge at the Meaux tribunal de grande instance for the armed assault on 8 April 2000 of his former partner and their thirteen-year-old daughter, occasioning total unfitness for work for more than eight days, and also for criminal damage and theft.

On the same day Joselito Renolde was placed in pre-trial detention in Meaux Prison. A medical and psychological report ordered by the investigating judge, submitted on 19 July 2000, found that he had retardations and deficits in the cognitive sphere; that, having a neurotic structure, he possessed immature and infantile defence mechanisms and several paranoid traits; and that, as he was incapable of mentalising, all his violence was expressed on a physical level.

On 30 June 2000 he was transferred to Bois-d'Arcy Prison to be closer to his family. His personal file described him as a normal person and mentioned sedative treatment.

On 2 July 2000 Joselito Renolde attempted to commit suicide by cutting his arm with a razor and was treated at the infirmary. The warder on duty found him to be somewhat ‘disturbed’ and called in the Rapid Crisis Intervention Team (Équipe Rapide Intervention de Crise — ‘ERIC’) from the psychiatric unit at Charcot Hospital after Joselito Renolde had claimed to be hearing voices. The duty officer also observed three other cuts on his forearm and noted in the file that he had forced his way out of his cell.

The emergency report drawn up by the ERIC team stated:

The ERIC team accordingly prescribed antipsychotic neuroleptic treatment, later adding an anxiolytic. The infirmary staff supplied the medicine to Joselito Renolde twice a week from 2 July 2000, without checking that he actually took it.

From 3 July 2000 onwards, Joselito Renolde was treated by the Regional Medical and Psychological Service (service medico-psychologique regional — ‘the SMPR’) and placed in a cell on his own under special supervision, which took the form of more frequent patrols. He was seen by the SMPR on 3, 4, 5, 7, 8, 10, 13, 18, 19 and 20 July 2000.

On 4 July 2000 a trainee warder reprimanded him for throwing a piece of bread out of the window. Joselito Renolde threatened her with a fork, saying:

He then threw a stool in her face. The warder was certified unfit for work for five days.

During the inquiry into that incident, Joselito Renolde made incoherent statements and denied what had happened. The inquiry report stated: ‘very disturbed prisoner who had already wanted to go to the SMPR at 7.50 a.m., received by the SMPR in the afternoon’. As to the action to be taken, the report stated:

On 5 July 2000 Joselito Renolde was interviewed by the disciplinary board and spoke coherently. He stated that he had been asleep because of his medication but that the warder would not leave him alone; he denied that he had thrown a stool at her or threatened her with a fork but admitted having thrown a piece of bread outside.

The disciplinary board found it established that physical violence had been used, entailing disciplinary offences punishable under Article D. 249-1 and Article D. 249-2, paragraph 1, of the Code of Criminal Procedure. Joselito Renolde was given a penalty of 45 days in a punishment cell, which he began serving on 5 July 2000.

On 6 July 2000 he wrote a letter to his sister in which he compared his cell to his tomb and said that he was ‘at the limit’ and taking tablets. He explained to her that he would be spending 45 days confined within four walls, with no television or music. In a drawing he depicted himself as crucified on a tomb bearing his name, next to the bed in his punishment cell, and ended his letter as follows:

The letter was sent on 10 July 2000 (date of the postmark).

In a letter of 12 July 2000, received at the investigating judge's registry on 17 July 2000, Joselito Renolde's lawyer asked the judge to order a psychiatric examination of her client in order to ascertain whether his mental state was compatible with detention in a punishment cell. The letter from the lawyer read as follows:

According to information supplied by the Government, the request for an examination was referred on 19 July 2000 by the investigating judge to the public prosecutor, who stated on the same day that he had no objection to such a measure.

Joselito Renolde was supplied with medication for the last time on 17 July 2000. He was handed several days' medication, with no supervision of whether he actually took it.

During the night of 19 to 20 July 2000, an intervention report noted that at 4.25 a.m. Joselito Renolde was not asleep, was tapping at the bars of his cell and wanted to go out.

On 20 July 2000, between 11 a.m. and noon, a nurse from the psychiatric service met him and told him that someone from social services would be coming to see him later. On leaving his cell for exercise at 3 p.m., he asked to see a doctor. At 4 p.m. he returned to his cell.

At 4.25 p.m. the warder on patrol found him hanging from the bars of his cell with a bed sheet. A doctor and two nurses from the Outpatient Consultation and Treatment Unit (unité de consultation et de soins ambulatoires — ‘the UCSA’) arrived at 4.30 p.m., followed by the ambulance service and fire brigade at 4.45 p.m. Despite efforts to revive him, Joselito Renolde was pronounced dead at 5 p.m.

After being called to the scene at 4.50 p.m., the police conducted initial inquiries and interviews. The Versailles public prosecutor visited the scene at 7 p.m. and a preliminary investigation was opened.

On 21 July 2000 a forensic medical examiner conducted an autopsy and reached a finding of suicide by hanging.

An expert toxicological report, ordered by the public prosecutor on 21 July 2000, found that no medicinal substances were present in Joselito Renolde's body, other than paracetamol.

The warders who had been present on the scene, the medical staff and the prisoners placed in solitary confinement in neighbouring cells were questioned.

Mr R., a warder, stated that on the day of the incident Joselito Renolde had gone out for exercise without any trouble and that he had been seen that same morning by the medical and psychological service, who had not issued any instructions concerning him. Mr R. added:

One of the prisoners in solitary confinement in a neighbouring cell, Mr N., stated:

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:

Dr L., the psychiatrist in charge of the SMPR, confirmed that the SMPR had supplied Joselito Renolde with medication for several days in his cell twice a week, on Tuesdays and Fridays, without the nurses checking whether he actually took it. He pointed out that, where a prisoner's mental state required regular attention, the doctor ordered the medication to be taken daily in the SMPR in the presence of the nurses. In Joselito Renolde's case, he stated that the members of his service had not ‘at any time noted any factors suggesting that the medication should be taken at shorter intervals, or in the service itself’. He added that checking whether all medication prescribed by the SMPR was actually taken was impossible and ‘contrary to the principle of trust which underlies the therapeutic alliance in a hospital environment’.

Mr B., a psychiatric nurse, stated that Joselito Renolde had not displayed an attitude suggesting that he might not take his medication.

Ms H., the psychiatric nurse who had seen him the morning before his suicide, stated that he had not seemed particularly depressive to her and that no comments of a depressive nature had aroused her attention that day.

Joselito Renolde's former girlfriend, who was likewise questioned, stated that he had been admitted to psychiatric institutions on several occasions.

On 8 September 2000 the public prosecutor applied for a judicial investigation to be opened in respect of a person or persons unknown for manslaughter, and an investigating judge of the Versailles tribunal de grande instance was appointed to that end. On 15 September 2000 Joselito Renolde's brothers and sisters, including the applicant, applied to join the proceedings as civil parties.

On 16 October 2000 the investigating judge appointed two psychiatric experts, Dr G. and Dr P., instructing them to inspect Joselito Renolde's medical records; to analyse their contents and to determine whether the condition from which he suffered was compatible with detention in a punishment block, whether the absence of medicinal substances in his blood was normal, whether it was to be concluded that he had deliberately refrained from taking his medication and whether such an interruption of treatment had influenced his behaviour, and in particular his suicide; to clarify the reason for the ERIC team's intervention on 2 July 2000; to interview, if necessary, the SMPR psychiatrist and nurses and the members of the ERIC team; and to determine whether Joselito Renolde's suicide had been foreseeable in view of his conduct and state of health.

The experts inspected the file on the criminal proceedings and Joselito Renolde's medical records. On 29 March 2001 they submitted their report, concluding as follows:

The civil parties were interviewed by the investigating judge on 23 May 2001.

On 23 July 2001 the judge notified the parties that the investigation was complete. In a letter of 9 August 2001 the civil parties' lawyer asked for certain steps to be taken, namely for the persons responsible to be charged with the manslaughter of Joselito Renolde through a breach of their duties of care and safety, in the alternative with endangering his person by placing him in a punishment cell although he was known to be extremely fragile, and in the further alternative with failing to assist a person in danger.

In an order of 14 August 2001 the judge refused the request, giving the following reasons:

In an order of 11 September 2001 the judge ruled that there was no case to answer, on the ground that the investigating authorities had found no basis on which anyone could be held criminally liable.

The civil parties appealed against the order to the Investigation Division of the Versailles Court of Appeal, asking for further inquiries to be made with a view to bringing charges against all those responsible for the offences of manslaughter, endangering the life of another and failing to assist a person in danger. In a memorial of 12 March 2002 they expressed doubts, in particular, about the 45-day disciplinary sanction imposed on Joselito Renolde, who was known to be a fragile person who had already attempted suicide and had displayed suicidal intentions in his letters.

In an interlocutory judgment of 29 March 2002 the Investigation Division ordered additional inquiries and appointed one of its judges to conduct them.

On 14 January 2003 the judge requested a copy of the file on the investigation in respect of Joselito Renolde.

On 19 May 2003 the judge interviewed Mr C., deputy governor of Bois-d'Arcy Prison and the person in charge of the ‘adult’ wing, which included the ‘arrivals’ block, the solitary-confinement block and the punishment block. Mr C. stated that Joselito Renolde had been included in the warders' special register from 2 July, after slashing his arms, and that he had then been examined by the psychiatric emergency team. The psychiatrist had found that he was in a delusional state with acute psychotic decompensation. From that date on, he had been under special supervision and had been placed in a cell on his own. Mr C. explained that the taking of medication by prisoners was the responsibility of the SMPR staff and not the prison authorities. He also pointed out that the monitoring of correspondence could not entail reading every letter in detail.

On 29 September 2003 the investigating judge of the Court of Appeal ordered a further toxicological report on the basis of samples taken on 21 July 2000, with a view to determining the date on which Joselito Renolde might have stopped taking his prescribed medication. The report, submitted on 4 February 2004, concluded that at the time of his death, Joselito Renolde had not taken the prescribed anxiolytic medication for at least one to two days, and the neuroleptic medication for at least two to three days.

On 18 May 2004 the judge interviewed Dr L., the psychiatrist in charge of the Bois-d'Arcy SMPR. Dr L. considered that Joselito Renolde's condition had not called for any particular precautions in terms of taking medication, and that there had been no clearly identified or suspected suicide risks, no serious behavioural disorders and no suspicion of incorrect use of medication. Nor, in the psychiatrist's view, was there any incompatibility in prescribing neuroleptic medication to a prisoner in a punishment cell.

The submission of the findings of the additional inquiries was noted in a judgment of 11 June 2004.

A hearing before the Investigation Division was held on 12 January 2005.

In a judgment of 26 January 2005 the Investigation Division upheld the ruling that there was no case to answer, holding as follows:

The civil parties did not appeal on points of law.

The Government objected, as their main submission, that domestic remedies had not been exhausted. They observed, firstly, that the applicant had not appealed on points of law against the Investigation Division's judgment of 26 January 2005. They further noted that she had had the possibility of bringing an action for damages against the State in the administrative courts with a view to obtaining compensation.

The Government pointed out in that connection that since the Conseil d'Etat's Chabba judgment of 23 May 2003, administrative courts no longer required the existence of gross negligence, and cited several judgments delivered in 2004 by the Rouen, Amiens and Marseilles Administrative Courts in which the State had been held liable for prisoner suicides.

The applicant emphasised that her aim was not to obtain compensation, but to ensure that justice was done and that those responsible were punished.

The Court considers that the applicant can claim to be a victim, within the meaning of Article 34 of the Convention, on account of her brother's death (see Çelikbilek v. Turkey (dec.), no. 27693/95, 22 June 1999, and, mutatis mutandis, Yaşa v. Turkey, 2 September 1998, § 66, Reports of Judgments and Decisions 1998-V, and Velikova v. Bulgaria (dec.), no. 41488/98, ECHR 1999-V).

As to the first point raised by the Government, the Court observes that under Article 575 of the Code of Criminal Procedure, an appeal on points of law by the civil party alone, in the absence of an appeal by the public prosecutor, will be admissible only in certain exhaustively listed circumstances, which the Government have not maintained were present in the instant case (see Rezgui v. France (dec.), no. 49859/99, ECHR 2000-XI). That being so, the Court concludes that an appeal on points of law by the applicant would have been bound to fail and cannot therefore be regarded as an effective remedy that should have been used.

As to the second point, the Court observes that the applicant brought a civil-party application in September 2000 to join the criminal proceedings for manslaughter, which were instituted after her brother's suicide and ended in January 2005. The Chabba judgment was delivered in May 2003, almost three years after the events in the instant case, and it was only from that date that the existence of the remedy referred to by the Government became sufficiently certain (see Saoud v. France, no. 9375/02, §§ 77–79, ECHR 2007-…). The Court considers that the applicant could not have been expected to avail herself of this additional remedy after the criminal proceedings had ended.

The objection must therefore be dismissed.

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

To the extent that the Government's objection of failure to exhaust domestic remedies (see paragraph 63 above) also concerns the applicant's complaint under Article 3 of the Convention, the Court considers that it should be dismissed for the reasons set out in paragraphs 70–71 above.

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.