SECOND SECTION

CASE OF SLIMANI v . FRANCE

( Application no. 57671/00)

FINAL

27/10/2004

JUDGMENT

[Extracts]

STRASBOURG

27 July 2004

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

I n the case of Slimani v . France,

The European Court of Human Rights (Second S ection), sitting as a Chamb e r compos ed of :

M r A.B. Baka , Pre sident , Mr J.-P. Costa , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr M. Ugrekhelidze , M rs A. Mularoni , ju d ges , and M rs S. Dollé , S ection Registrar ,

Having deliberated in private on 8 Apri l 2003 and 6 July 2004 ,

Delivers the following judgment, adopted on the above-mentioned d ate :

...

THE FA CTS

I. THE CIRCUMSTANCES OF THE CASE

6 . The applicant was born in 1969 and lives in Marseille s . Her late partner , Mr Sliti , born in 1958, was a Tunisian national .

A. M r Sliti ’ s criminal and medical record

7 . M r Sliti had been committed to a psychiatric hospital several times both in Tunisia and in F rance.

8 . M r Sliti had been sentenced to four years ’ imprisonment and permanently excluded from French territo ry by a ju dg ment of the Marseille s Criminal Court of 2 October 1990 . The order permanently excluding him from French territory was not e nforced immediately after he had served his prison sentence .

9 . I n 1998 M r Sliti set fire to the applicant ’ s house and threatened t o 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 Crimi n al Court of 21 September 1998 .

After being compulsorily detained in Edouard Toulouse H ospital in Marseille s ( C entre H ospitalier Edouard Toulouse – “the CHET ”) between 29 July and 25 August 1998 (psychiatri c department ), M r Sliti had later been transferred to B eaumettes P rison to serve the above-mentioned sentence .

10 . A psychiatrist ’ s report ordered by the P resid ent of the Marseilles tr ibunal de grande instance , dat ed 1 September 1998 and prepared by D r Go ujon of the CHET, conclu ded , among other things, that Mr Sliti should undergo “ long-term psychiatric treatment, or even [ hospitalisation] in a psychiatric ward ” .

There was also a letter (dat ed 4 May 1999) from Dr Chabannes , a psychiatr ist 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 19 98, his “suicide threats suggest [ ing ] that he might harm himself”.

A medical certificat e dated 9 February 1999 and issued by the same doctor contained the following observations :

“ ... [M r Sliti ] , whose condition is currently stable ... is being treated w ith a combination of anti -depressants , tranquillizers and neurolepti c s. It is in [his] best interests to continue receiving psychiatric care on c e he is released especially [as he] has himself requested psychiatric support . One of the practitioners at Edouard Toulouse H ospital will continue to act as his responsible medical officer ”.

The medical treatment prescribed to M r Sliti before his placement in administrative detention was composed of the following anti-depressants , neurole p ti c s and tranquillizers : Lysanxia - 40 mg ( two tablets every 24 h o ur s), Deroxat - 20 mg ( one tablet every 24 h our s), Phenergan ( four tablets every 24 h our s) and Risperdal - 2 mg ( two tablets every 24 h our s).

B. Mr Sliti ’ s placement in Marseille s - Arenc Administrative Detention Centre

11 . On 22 May 1999 the Bouches -du-Rhône P refect d ecided to enforce the order that had been made on 2 O ctob er 1990 permanently excluding Mr Sliti from France and ordered him to be deported to Tunisi a . To that end he ordered Mr S liti to be held in Marseille s - Arenc Administrative Detention Centre until 24 May 1999 .

M r Sliti was still receiving medica l treatment , as evidenced by a pr escription made out by Dr Chabannes on 21 May 1999 .

At Marseille s - Arenc Detention Centre the police took responsibility for fetching the medic ine prescribed to Mr Sliti and giv ing it to him .

12 . In an order of 24 May 1999 the P r e sident 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 P r e sident of the Court of Appeal on the grounds that the procedure had been lawful and that “ M r S liti [ 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 ” .

C. M r Sliti ’ s death

13 . In the morning of 26 May 1999 M r Sliti twice refus ed to take his medic in e . 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 , p olice officers on duty at Arenc quickly arrived on the premi ses 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 firefighter s 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. M r Sliti was taken to Conception H ospital in Marseille s where he was admitted to the intensive care unit at approximately 12 . 50 p.m. He died there at 2. 50 p.m .

D. Inqu est to “ investigate the cause s of death ”

14 . On 26 May 1999 an inquest was commenced in accordance with A rticle 74 of the C ode of Crimi n al Procedure (C C P) “ to determine the cause s of the death” of Mr Sliti .

On 27 May 1999 the investigating judge sent instructions to Marseilles C entral Police S tation to pursue the in quiry and, to that end “ take evidence from any relevant witnesses capable of providing information , make all necessary findings , investigations , lawful searches wherever necessary , a nd seiz e any items necessary for establish ing the truth ” and “ send ... any necessary r equests t o a ny publi c authorities or private bodies , a ny civil servants and public or ministerial officers, and more generally a ny persons capable of providing information or d ocuments that will assist in establishing the truth” .

An autops y was carried out on 27 May 1999 . The autopsy report, of the same date, made the followi ng conclusions :

“The examination and autopsy of M r Moshen Sliti ’ s body show :

– s igns of resuscitation .

The mark observ ed in the left abdominal region may have been left by cardiopuncture . This needs to be confirmed by an anatom ic opathologi cal examination of the heart and an examination of the medi cal file .

– no suspicious signs suggesting violence.

– diffuse d polyvisceral hyperaemia .

– the pre sence of abundant spume in the trach ea and bronchi and of macroscopic heart transformations that may indicate acute cardiorespirat ory failure, subject to confirmation by expert anatom ic opathologi cal 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 A renc during the morning of 26 May 1999 . On 28 May 1999 he heard evidence from the deceased ’ s uncle and on 3 Jun e 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 a t the time of the events (Mr T.S. Smain and M r E. Louis) and were eyewitnesses to them . The records of these interviews show that about ten people had been in the vici nity 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 t h e day before the events in question occurred .

Further medical samples were taken from the victim ’ s body o n 15 June 1999 .

15 . An anatom ic opathologi cal examination of swabs taken from M r Sliti ’ s body was carried out on 1 5 October 1999 by Dr H.P. Bonneau , who had been appointed for th e purpose by the investigating judge . H e ma d e the following conclusions in his report :

“ Anatomicopathological examination of the autopsy swabs (treated with formalin) show ing an acute pulmonary oedema , the cause of M r 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 hist ologi cally normal . ”

The investigating judge ordered a toxicolog ist ’ s report ( ord ers of 31 May and 15 June 1999 ) and appointed D r M. Fornaris to prepare it . She carried out her examin ation on 20 June 2000 and made the following conclusions in her report, dated 19 July 2000 :

“ ... the toxi cs found all result from m edication ; they are present in various pathologies (anxi ety , pain , convulsions...).

They do not appear likely , either inherently or by their association or level in the blood (a t 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 to xicolog y reports . She was never inte rviewed by the investigating judge and was excluded from the investigation .

On 22 Ap ril 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 m anslaughter . 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 A rticle 81 of the C C P . Her request was declared inadmissible by an order of 2 9 May 2000 on the ground , inter alia , that “ i n the proceedings to investigate the cause s of death, M s Slimani does not have standing to request i nvestigative measures” .

17 . In orders of 6 and 20 November 2000 the investigating judge appointed D oct or Boudouresques and Doctor Romano to carry out the following instructions :

“Consult Mr Sliti ’ s medical file at Conception H ospital and the attached copies of the procedural documents .

( i ) D etermine the cause of Sliti Moshen ’ s death and establish , inter alia , whether the treatment admin istered was in conformity with current medical knowledge .

(ii) D escribe the medical infrastructure of the Marseilles Arenc Centre and state whether it complies with the law s 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 f rom a medical point of view .

You may question anyone who se 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 1 7 March 2001 . It stated that “ prior to Sep temb er 2000, no medical structure existed[ ;] medic ines were di stributed to detainees by police officers” . Regarding the cause of death , i t 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 disorder s presented by M r Sliti correspond s to ge neralised and recurring epileptic fits , thus an epileptic condition .

This epileptic condition can be regarded as in augural in so far as Mr Sliti had no known epileptic history .

I t is possible that the refusal to take his medicine ( we are thinking in particul a r of the B enzodiazepines : 80 mg of L ysanxia ) contributed to the onset of th is epileptic condition .

R egard ing the results of the toxicolo gical analysis , no toxic substance other than a medicinal one has been found . Moreover, according to the toxicolog y report t he se 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, barbitur ates .

A tube was inserted into the trachea .

The patient was given medical treatment at A renc Centre for one and a half hours be fore being taken to Conception Hospital in Marseille s at approximately 12 . 15 p.m .

After being treated with barbitur ates 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 th e multi-purpose intensive care unit at Conception Hospital is that habitually proposed in this typ e of medical emergency .

Despite being resuscitated very quickly and efficiently by means of intubation, artificial respiration , drip , external heart massage , with al k alinisation , 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 offic ers 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 e pilepti c condition , insertion of tube in trach e a), the conditions of transfer to Conception Hospital in Marseille s , 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 M rs M. Fornaris on 20 July 2000 does not allow identification of a ny toxi c substance that might have caused the death .

The autops y of Mr Mo hs en (sic) Sliti ’ s body showed both signs of resuscitation, and in particul a r cardiopuncture , and the pr e sence o f large quantities of spume in the trach ea of the bronch i and macroscopi c heart transformations suggestive of acute car d iorespiratory failure .

Lastly, the anatom ic opathologi cal examination performed by D r H.P. Bonneau on 15 October 1999 showed an acute pulmonary oedema as the cause of M r Sliti ’ s death .

Conclusion :

The cause of Mr Sliti Mo hs en ’ s (sic) death was a cardiac arrest following an acute pulmonary oedema ( acute failure of left auricle ) after an inaugural epileptic condition (possibl y induced by Mr Sliti ’ s refusal to take his usual treatment ).

The treatment administered was done so in accordance with current medical knowledge (a t 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 o r 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 Govern ment in th e proceedings before the Cour t , stating that she had not previously had access to them . In her submission , the y show ed that “ the death of Mr Sliti [was] the cons e quence of a serious breakdown in the operation of the s ervice a t Arenc Detention Centre”. She complained, in particul a r , of insufficient medical facilities and staff at the material time.

II. RELEVANT DOMESTIC LAW

20 . A rticle 74 of the CC P 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.”

A rticle 80-4 C C P , which was a dded to the Code of Criminal Procedure by Law no. 2002-1138 of 9 S eptemb er 2002 ( Official Journal of 10 S eptemb er 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 damage s. 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 . A rticle 85 of the C CP provides :

“Anyone who claims to have suffered damage as a result of a serious crime o r serious offence may, by lodging a criminal complaint , join the criminal proceedings as a civil party on application to the relevant investigating judge .”

III. R EPORTS OF THE EUROPEAN COMMITTEE FOR THE PRE vention OF torture AND IN HUMAN OR DEGRADING TREATMENT OR PUNISHMENT ( “ CPT ” )

A. R eport to the French Government on the visit to France from 6 to 18 O ctob er 1996 ( adopted on 1 4 May 1998 )

22 . Pa rt of the report is devoted to “ administrative detention centres f or foreign nationals” . P aragraph 202 is worded as follows :

( Unofficial translation )

“ ..., the holding conditions at Marseille s - Arenc Administrative Detention Centre left a lot to be desired . The material c onditions were me diocre and the foreign nationals were g iven no opportunity to take any walks outside throughout the entire duration of their stay . Furthermore , there was no provision for any specific me dical attention or nurs ing cover . In addition to the difficulties in seeing a doctor , the situation inevitably gave rise to unacceptable cons e quences from a medical - ethics standpoint . Lastly , the dele gation 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 dele gation expressed its serious concerns about Marseille s - Arenc Administrative Detention Centre at the end - of - visit interview . Subsequently , the French authorities informed the CPT of a series of me a sures des igned to improve health and safety at Marseille s - Arenc Administrative Detention Centre a nd the medical care of detainees ; m easures were also taken with regard to inform ing detainees about their rights and the applicable proce dure in the event of placing a detainee in isolation . That being said, the French authorities indicated that it w as undeniable that the building was ill-adapted to the needs of the centre .

The C PT expressed its satisfaction with the speed at which the a uthorities reacted to the delegation ’ s observations. The Committee pointed out, however, that it was un acceptable for detainees to be deprived of any opportunity to take exercise outside during prolonged per iod s and that a day nurse should be present inside the centre. I t accordingly recommended that the French authorities take appropriate measures immediate ly in those two respect s. More generally, the CPT asked the French authorities to reconsider setting up a new detention c entre in Marseille s” .

B. R eport to the French Govern ment on the visit to France from 14 to 2 6 May 2000 ( adopted on 9 July 2001 )

23 . The relevant paragraph s of this report are the following :

( Unofficial translation )

“ 59. With the exception of the Marseille s - Arenc Administrative Detention Centre , access to a doctor and medical care in the places visited in May 2000 c ould be deemed satisfactory . I n particul a r, in all the se establishments a ccess to a doctor and medicine s was free of charge for the foreign nationals concerned .

...

60. A s i n 1996, the situation a t Marseille s - Arenc was still u nacceptable , however, from the medical - ethics and – it has to be added – human stand point . In July 1998 the organisation Médecins du Monde terminated the M utual A ssistance Agreement for the Medical C are of D etainees . The organisation SOS Médecins , for its part , agreed to visit the Centre only in exceptional circumstances . The d e l e gation 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 medi cine supplies ( for exa mple, maintenance or medicine for asthma sufferers ) were about to run out .

In addition , since the ad hoc agreement has still not been signed, no nurs e was present . Nor did t he centre have a single first-aid kit ( not even dressings ) and medicine s , kept in a cardboard box , were distributed by surveillance staff in accordance with the needs expressed by the detainee s.

In response to the delegation ’ s immediate o bservation, the French authorities have informed the CPT t hat a n agreement on the provision of health services was signed on 14 June 2000 between the Bouches -du-Rhône Prefect and the M arseille s public hospitals authority . From 1 S eptemb er 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 satisf action with the measures taken . ”

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION , AND OF ARTICLE 13 TAKEN TOGETHER WITH ARTI CLE 2 O R ARTICLE 3

...

B. The C our t ’ s assessment

1. General principles

27 . The Cour t reiterates that the first sentence of A rticle 2 enjoins the Contracting States not only to refrain from the taking of life “intentional ly” or by the “ use of force ” disproportionate to the legitimate aims referred to in sub- paragraphs ( a) to ( c) of the second paragraph of that provision , but also to take appropriate steps to safeguard the lives of those within its jurisdiction ( see , inter alia , L.C.B. v. the United Kingdom , judgment of 9 June 1998, Reports of Judgments and Decisions 1998 ‑ III, § 36, and Keenan v. the United Kingdom , no. 27229/95, § 89 , ECHR 2001 ‑ III ).

The obligations on Contracting States take on a particular dimension where detainees are concerned since detainees are en tirely under the control of the authorities . I n view of their vulnerability , the authorities are under a duty to protect them . The Court has accordingly found, under A rticle 3 of the Convention, that, where applicable , it is incumbent on the State to give a convincing explanation for any injuries suffered in custody ( see , for exa mple, Ribitch v. Austria , 4 December 1995, Series A n o. 336, § 34, and Salman v . Tur key [GC], no. 21986/93, § 99, ECHR 2000-VII) o r during other forms of deprivation of liberty ( see , for ex a mple, Keenan , cited above , § 91, and Paul and Audrey Edwards v . the United Kingdom , 14 March 2002, no. 46477/99, § 56), which obligation is particularly stringent where that individual dies ( ibid . ).

Having also held t hat A rticle 3 of the Convention requires the State to protect the health and physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance ( see , inter alia , Keenan , cited above , § 111 ; Mouisel v . France , no. 67263/01, § 40 ; ECHR 2002-IX ; and McGlinchey and Others v . the United Kingdom , no. 50390/99, § 46, ECHR 2003-...), the Court considers that , where a detainee dies as a result of a health problem , the State must offer an explanation as to the cause of death and the treatment administered to the person concerned prior to the ir death .

As a general rule , the mere fact that an individual dies in suspicious circumstances while in custody should raise an iss ue as to whether the State has complied with its obligation to protect that person ’ s right to life .

28 . It should also be added that A rticle 3 of the Convention includes the right of all prisoner s to conditions of detention which are compatible with human dignity, so as to ensure that the manner and method of execution of the measures imposed do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention; in addition, besides the health of prisoners, their well-being also has to be adequately secured, given the practical demands of imprisonment ( see , for ex a mple, Mouisel , and McGlinchey and Others, cited above , loc. cit. ). In this context account has to be taken of the particular vulnerability of mentally ill persons ( see , for ex a mple, Keenan , cited above ).

These guarantees must , by analog y , b enefit other person s deprived of the ir liberty, such as persons placed in administrative detention .

29 . The Court has also held that t he obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State ’ s general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, also requires by implication that there should be some form of effective official investigation when an individual ha s been killed as a result of the use of force. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. The kind of investigation that will achieve those purposes may vary according to the circumstances. However, whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures ( see , for ex a mple, McKerr v . the United Kingdom , n o. 28883/95, § 111, ECHR 2001-III).

30 . In the Court ’ s opinion , the same is true in any case in which a detainee dies in suspicious circumstances : an “ official and effective investigation ” capable of establishing the cause s of death and identifying and punish ing those responsible must be carried out of the authorities ’ own motion ( see , in this regard , Paul and Audrey Edwards , cited above , § 74).

31 . An investigation of that sort must also be carried out where an individual makes a credible assertion that he has suffered treatment infringing Article 3 of the Convention at the hands of the police or other similar authorities ( see, for example, Assenov and Others v. Bulgaria , judgment of 28 October 1998, Reports , 1998 ‑ VIII, § 102 ).

32 . For the investigation to be effective, it is necessary for the persons responsible for carrying it out to be independent from those implicated in the death. They should not be hierarchically or institutionally subordinate to them but independent in practice ( see, for example, McKerr , § 11 2 , and Paul and Audrey Edwards , § 70 , cited above ).

The authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia , eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death . Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard ( see , inter alia , McKerr , cited above, § 113, and Paul and Audrey Edwards , § 71 , cited above ).

Moreover, in cases in which the use of force by the authorities had resulted in the death of individu al s, the Cour t has held that “ a requirement of promptness and reasonable expedition is implicit in this context ” , emphasising in that connection that a prompt response by the authorities may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts ( see, for example, McKerr , § 114, and Paul and Audrey Edwards , cited above , § 72 ) . The Court considers that this applies in any case in which a person dies while in the custody of the authorities since, with the passing of time, it becomes more and more difficult to gather evidence from which to determine the cause of death .

In the same type of case the Court has stressed that there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. It has specified that although the degree of public scrutiny required may vary from case to case the next-of-kin of the victim must in all cases be involved in the procedure to the extent necessary to safeguard their legitimate interests ( see , inter alia , Hugh Jordan v . the United Kingdom , n o. 24746/94, § 109 , 4 May 2001 ; McKerr , § 115 ; and Paul and Audrey Edwards , § 73) . It considers that this must be the case where a person dies while in the custod y of authorities .

2. Application in the present case

33 . In the present case it is not alleged that the authorities “ intentionally ” killed M r Sliti or that his death was caused by a disproportionate use of force. Under A rticles 2 and 3 of the Convention the applicant ’ s main complaint against the authorities was that they detained M r Sliti in a place that was not equipped with the medical facilities or care that his state of health required and that they failed to administ er the appropriate treatment when he fell fatally ill .

34 . T he case file shows that M r Sliti had been hospitalised in a number of psychiatri c institutions , was receiving medical care prior to his placement in Marseille s - Arenc Detention Centre an d was under heavy medication when that measure was taken , and that the authorities were informed accordingly . Furthermore, the reports of the C PT of 14 May 1998 and 9 July 2001 ( see paragraphs 22-23 above ) show that at the time when M r Sliti was being held in Marseille s - Arenc Detention Centre it had no medical facilities or medical staff and that the material conditions of his detention were poor .

That suffices for the Court to hold that the princip l es set out in paragraph s 27-32 above apply in the instant case .

( a) The alleged responsibility of the authorities for M r Sliti ’ s death , the conditions of his detention and the complaint based on A rticle 13 of the C onvention read in conjunction with A rticle 2 o r A rticle 3 of the Convention

35 . The Government criticised the applicant for failing to lodge a criminal complaint for homicide together with an application to join the proceedings a s a civil party or to bring an action in the administrative court s to establish the liability of the State before lodging her application with the Court . They raised a preliminary objection of failure to exhaust domestic remedies in respect of the complaint based on Article 2 and concerning the alleged responsibility of the authorities for Mr Sliti ’ s death , and the complaint based on A rticle 3 and concerning the conditions of M r Sliti ’ s detention in Marseille s - Arenc Centre .

36 . In its admissibility decision of 8 April 2003 the Cour t joined that objection to the merits on the ground that the Government ’ s submission regarding failure to exhaust domestic remedies was closely linked to th e applicant ’ s other complaints under A rticles 2 and 3 of the Convention and the complaint based on A rticle 13 of the Convention.

37 . The Cour t considers, howe ver, that th is objec tion should be severed from the merits and examined now.

38 . That being so, the Court reiterates that under A rticle 35 § 1 of the Convention, it may only deal with an application after all domestic remedies have been exhausted . Th e purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it . Th e rule under Article 35 § 1 is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – , that there is an effective remedy available in respect of the alleged breach in the domestic system , which remedy must also “relate to the breaches alleged and be available and sufficient ” ( see , for exa mple Mifsud v. France ( dec. ) [GC], no. 57220/00, § 15, ECHR 2002 ‑ VIII ).

39 . In the instant case, like “ anyone who claims to have suffered damage as a result of a serious crime or serious offence ” , the appli cant could have lodged a criminal complaint for homicide with the relevant investigating judge and sought leave to join the proceedings as a civil party ( A rticle 85 of the Code of Criminal Procedure) .

Such a complaint – which can be made against persons unknown – sets the criminal proceedings in motion. Th e investigating judge is under a duty to investigate in the same way as if an application to open an investigation had been lodged by the public prosecutor ( there is long-established and consistent case-law on this point; for a recent exa mple, see Cass. Crim . , 21 S eptemb er 1999 , Bull. no. 188). W here the investigation discloses that the facts complained of can be classified as criminal , it may lead to the case being brought before the criminal courts, which then have power not only to decide the questions of law submitted to them but also to rule on the civil action and, if applicable, make good the loss sustained by the civil party as a result of the offence .

If the investigating judge dealing with a complaint lodged by the next-of-kin of a person who died in suspicious circumstances consid ers, at the end of the investigation, th at the death was not cause d by act s o r omissions capable of being classified as criminal , he or she issues an order discontinuing the proceedings , which terminates the prosecution . If it appears to the victim ’ s next-of-kin – in the light, where applicable, of the results of the investigation – that the death is likely to have been caused by a breakd ow n in the administrati ve departments responsible for the deceased, or by shortcomings on the part of the staff in those departments , they can still sue the State for damages in the administrative courts .

40 . Those consid e rations a lso apply in respect of facts that m ay fall to be considered under A rticle 3 o f the Convention.

41 . The Cour t concludes from this that the applicant had a remedy under domestic law which fulfilled th e above-mentioned conditions , that is, was accessible, capable of providing redress in respect of her complaints and offer ed reasonable prospects of success ( see, for example, Selmouni v. France [GC], no. 25803/94, § 76 , ECHR 1999 ‑ V ) . She was therefore obliged to use i t before applying to the Court . As she did not do so, the Court cannot examine the merits of the complaints.

The Court therefore allows th e Government ’ s objection on the grounds of in admissibility . Accordingly , it cannot consider either the merits of the complaint based on a substantive breach of A rticle 2 of the Convention and regarding the alleged respons ibility of the authorities for Mr Sliti ’ s death or the merits of the complaint based on Article 3 of the Convention and regarding the conditions of Mr Sliti ’ s detention in Marseille s - Arenc Centre .

42 . Given the close affinities between A rticle 13 and A rticle 35 § 1 of the Convention, the Cour t also conclu des that there has not been a violation of A rticle 13 read in conjunction with A rticle 2 o r A rticle 3 of the Convention.

( b) The conduct of the “ official and effective investigation ” required by A rticles 2 and 3 of the Convention

43 . The Cour t notes that an inquest to “ determine the cause s of death ” ( A rticle 74 C C P ) was opened automatically on the very day of Mr Sliti ’ s death. An investigating judge was properly given charge of the inquest .

Such an inquest is d esigned to determine whether the person died as a result of a serious crime o r major offence . If this is the case , the investigating judge cannot proceed to bring charges , but a judicial investigation can be opened on an application by the public prosecutor under A rticle 80 of the C C P . Where applicable, persons suspected of being responsible for the death may be prosecuted in the criminal courts .

There is therefore no doubt that an inquest to “ determine the cause s of death ” is, in theory , an “official investigation” capable of leading to the identification and punishment of those responsible . I t remains to be determined whether it was “ effective ” in the present case .

44 . In that connection the Court notes that the applicant was excluded from the inquest . She could not obtain access to the documents or take part in the inquiry or even be interviewed by the investigating judge . She was not given any information about the progress of the inquiry . She was not even informed of the decision to dis continue the proceedings, made on 26 June 2001 . The position at the material time was that where an inquest was under way to “ determine the cause s of death ”, the deceased ’ s next-of-kin could neither obtain access to the file nor take part in the proceedings in any way.

45 . The Government replied that the applicant could nonetheless have taken steps to become involved in the proceedings by lodging a crim i nal complaint with the relevant investigating judge against persons unknown for homicide and applying for leave to join the proceedings as a civil party . The inquest to determine the cause s of death would t hus have been close d and joined to the new proceedings .

46 . The Court has already observed that the applicant could have lodg e d a criminal complaint and applied to join the proceedings as a civil party ( see paragraph 39 above ). It is true that, as a party to the inquest , a civil part y ha s a number of means by which to gain access to the “ investigation ” : they can be assisted by a lawyer, who can obtain c opies of the procedural documents ( A rticle 114 of the Code of Criminal Procedure ); they can ask the investigating judge to order all necessary measures ( A rticle 81 C C P ), to hear their evidence or that of a witness , to hold a confrontation o r arrange an inspection of the scene of the events ; or to order the production by another party of a document relevant to the investigation (A rticle 82-1 C C P ) o r an expert report or a supplementary or second expert opinion (A rticles 156 and 167 C C P ) . Should the investigating judge refuse their request or fail to reply within one month , they have a remedy before the Pre sident of the Investigati on Division ( at the time of the facts of the present case this was the Presid ent of the Indictment Division) ; they are served ( A rticle 181 C C P ) with committal for trial ord ers and, inter alia , decisions not to investigat e, orders discontinuing the proceedings or orders adverse to their civil interests ( against which they can , moreover, appeal – A rticle 186 C C P ); lastly , in certain conditions c ivil parties can ask the investigating judge to commit the case for trial or declare that there is no need to pursue the investigation ; failing a reply within one month, they can lodge their application directly with the Investigation Division (A rticle 175-1 CC P ).

47 . Nevertheless , as the Court has already stressed , whenever a person in detention dies in suspicious circumstances , A rticle 2 requires the authorities to conduct an “ effective and official investigation ” of their own motion as soon as the case comes to their attention to enable the cause s of death to be established and anyone responsible for the death to be identifi ed and punished. The authorities cannot leave it to the initiative of the deceased ’ s next-of-kin either to lodge a formal complaint or to take responsibility for an y investigative procedure . To that should be added that such an investigation cannot be described as “ e ffective ” unless , among other things , the victi m ’ s next-of-kin are involved in the procedure to the extent necessary to safeguard their legitimate interests ( see paragraphs 29-32 above ).

In the Court ’ s opinion , requiring a deceased ’ s next-of-kin to lodge a criminal complaint together with an applicatio n to join the proceedings as a civil party if they wish to be involved in the investigation proceedings contravenes these principles . It considers that a s soon as the authorities become aware of a death in suspicious circumstances, the y should carry out an investigat ion o f their own motion in which the deceased ’ s next-of-kin should automatically be involved .

48 . The Court concludes from the foregoing that , in order for Article 2 of the Convention to be complied with, the applicant should have been allowed to take part in the inquest to determine the c ause s of Mr Sliti ’ s death without having to lodge a criminal complaint beforehand , which was not the case here . It further notes that French law has recently been amended accordingly : a deceased ’ s next-of-kin can now appl y to join the proceedings as a civil party in the context of such an inquest ( see paragraph 20 above ), which gives them effective access to the “ investigation ” without however oblig ing them to lodge a criminal complaint themselves together with an application to join the proceedings as a civil party .

49 . It is accordingly sufficient for the Court to note that the applicant was unable to obtain access to the inquest to determine the cause s of Mr Sliti ’ s death to conclude that the investigation was not “ effective ” . There has therefore been a violation of the procedural limb of Ar ticle 2 of the Convention in that respect.

50 . This conclusion makes it unnecessary for the Court to decide whether the investigation complied with the requirements of A rticle 3 of the Convention.

...

FOR THESE REASONS, THE COURT

1. Allows , by five votes to two , the Government ’ s preliminary objection ;

2. Holds , by five votes to two , that it cannot therefore examine either the merits of the complaint of a substantive violation of A rticle 2 of the Convention and regarding the alleged respons ibility of the authorities for Mr Sliti ’ s death or the merits of the complaint of a substantive violation of Ar ticle 3 of the Convention and regarding the conditions of Mr Sliti ’ s detention at Marseille s - Arenc C entre ;

3. Holds , unanimously , that there has not been a violation of A rticle 13 of the Convention taken in conjunction with A rticle 2 o r A rticle 3 of the Convention;

4. Holds , unanimously , that there has been a vi olation of A rticle 2 of the Convention on account of the applicant ’ s inability to take part in th e inquest to determine the cause s of Mr Sliti ’ s death and gain access to th at inquest ;

5. Holds , unanimously , that it is not necessary to decide whether the investigation complied with t he procedural requirements of A rticle 3 of the Convention;

...

Done in French and notified in writing on 27 July 2004 , i n accordance with Rule 77 §§ 2 and 3 of the Rules of Court .

S. Dollé              A.B. Baka Registrar Pre sident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Judge Loucaides , joined by Judge Mularoni is annexed to this judgment .

A.B.B. S.D.

PARTLY DISSENTING OPINION OF JU D GE LOUCAIDES , JOINED BY JU D GE MULARONI

1. I entirely agree with the general principles set out in paragraphs 27-32 of the judgmen t, and I fully subscribe to the Court ’ s conclusion that there has in this case been a violation of Ar ticle 2 of the Convention on account of the applicant ’ s inability to take part in the inquest to determine the cause s of her partner ’ s death . I consider, though, that the re were other shortcomings in the investigation carried out in the present case , which, in my view, should have been emphasised in the judgment . Moreover , I am not convinced by the reasoning that led the majority to allow the Government ’ s objection o n grounds o f failure to exhaust domestic remedies r egarding the complaint of a violation of A rticle 2 of the Convention and relati ng to the alleged responsibility of the authorities for M r Sliti ’ s death , and I consider that there has been a violation of th at provision under this head as well .

A. As regards the conduct of an “ offici al and effective investigation ” in the present ca s e

2. I entirely agree with the majority that the “ inquest to determine the c ause s of death ” referred to in A rticle 74 of the C ode of C riminal P rocedure is in theory an “ official investigation ” capable of leading to the identification and punishment of those responsible ( see paragraph 43 of the judgment ), and that, in the present case, it was sufficient to note that the applicant had no access to that inquest to conclude that it was not “effecti ve ” ( see paragraph s 44-49).

I wish to stress, however, that, in my view , other criteria established in t h is field by the Court ’ s case-law and reiterated in paragraph 32 of the judgment do not appear to have be en satisfied either .

3. I would point out, first of all, that the investigating judge did not himself undertake any investigation : the inquiry was fully entrusted to the senior police officers in accordance with general instructions issued on 27 May 1999 . The investigating judge , and the medical experts appointed by him , based themselves entirely on the facts as established by the police. The possibility could not be ruled out that Mr Sliti had died as a result of negligence by the police: the police are responsible for managing and supervising Arenc Centre , subject to the authority of the public prosecutor ; i n the a bsence of medical staff , medicines were distributed to detainees by police officers; i n the present case first aid was administered by those officers .

Moreover, in so far as it can be reconstructed from the documents produ c ed by the parties, there were a number of shortcomings in the investigation : (1) I am surprised , first of all, that it lasted more than two years and, in particul a r, that the anatomicopathological report (of 15 Oc tob er 1999) and the toxicological report ( of 19 July 2000) were made so long after the death , and that an expert medical opinion c o mparing the conclusions of tho se two expert reports with the data in the deceased ’ s medical file was not sought until 6 November 2000 ( and close d on 2 May 2001, that is, nearly two years after the death ); (2) only two of the deceased ’ s “ fellow detainees ” were questioned, whereas the file shows that some ten people were present during the events ; (3) al t hough the two “fellow detainees” who were interviewed state d that the deceased had been agitated the day before he was taken ill , and his medical history was known , the authorities did not attempt to establish whether there was a link between the death, the applicant ’ s condition prior to being taken ill and the failure to tr eat him beforehand; (4) neither the Navy firefighters who intervened at the scene ( except the doctor ) n or the m e dical staff who subsequently took charge of the applicant until his death were questioned ; (5) evidence was not heard from the applicant , who had been the person closest to the deceased ; (6) as has been stressed previously , the investigating judge did not carry out any investigation – he does not even appear to have gone to the scene of the incident .

B. As regards the authorities ’ responsibility for Mr Sliti ’ s death

1. Exhaustion of domestic remedies

4. I do not share the majority ’ s view that as the applicant did not lodge a criminal complaint together with an application to join the proceedings as a civil party, she failed to exhaust domestic remedies . I doubt that such a remedy (which is a criminal-law remedy) would be effective or adequate where , as could have been the case her e , the death complained of is not attributable to one or more individuals in particular, but likely to have been caused by “instit ution al” negligence . Moreover , the applicant ’ s submission that such a complaint was difficult to justify without having prior access to a minimum amount of i nformation about the circ um stances of the death i s not unfounded ; I find that argum ent all the more per suasive in that the complaint w ould in that case have been lodged by an “indirect victim” who had not witnessed the facts . Furthermore , since the Cour t has held in the present case, regarding the “ procedural obligations ” under Article 2 of the Convention, that the applicant should automatically have been allowed access to the inquest to determine the cause s of death , I find it contradictory to consider that she has not exhausted domestic remedies because she did not lodge a criminal complaint together with an application to join the proceedings as a civil party .

5. With regard to the possibility of raising her complaint before the administrative courts, in the context of an application for compensation , I note that, on the basis of the documents produced by the Government in the proceedings before the Cou r t , the applicant ( on 21 February 2003) lodged an application with the Minister of the Interior ( see par agraph 19 of the judgment ); if applicable , she should be able to challenge a refusal of that request in the ad ministrative court s. The case-law appears to indicate , however, that where no effective investi gation has been carried out , an application for compensation cannot be regarded as “ effective ” within the meaning of Ar ticle 13 taken in conjunction with A rticle 2 and within the meaning of A rticle 35 § 1 [1] ( see Hugh Jordan and McKerr , cited above , §§ 111 et seq. and 159 et seq. , and §§ 117 et seq . and 170 et seq . respective ly ).

6. That being stressed , I note that the applicant was totally excluded from the investigation ( she did not even have access to the a utops y report ) – which does not seem to have been “ effective ” in other respects either – ; she did not have any concret e evidence from which to judge whether her partner ’ s death could have resulted from negligent omission . In the end , her only means of gain ing access to the documents in the domestic proceedings was thro ugh the Court proceedings . In theory , the question whether domestic remedies have been exhausted is judged on the basis of the date on which the application is lodged ( see, for example, Zutter v . France , no. 30197/96, de cision of 27 June 2000; Van der Kar and Lissaur van West v. France , nos. 44952/98 and 44953/98 , 7 November 2000 ; and Malve v. France , no. 46051/99, decision of 20 March 2001). In addition, there may be special circumstances which absolve applicant s from the obligation to exhaust the domestic remedies at their disposal : the Cour t must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant s ( see, for example, Van Oosterwijck v. Belgium , judgment of 6 November 1980, Series A no. 40, p. , §§ 36-40 , and Selmouni v. France [GC], no. 25803/94, § 75 et seq . , ECHR 1999 ‑ V ) . Thus , in any event , on the date when the application was lodged with the Cour t the applicant was not in a position to use the remedies theoretically available to her . I deduce from this that there was no probl em of exhaustion in the present case and that the Court was required to examine on the merits the complaint lodged under A rticle 2 and relating to the authorities ’ responsibility for Mr Sliti ’ s death .

2. As to the merits

7. Where an individual dies in detention , it is incumbent on the State to account for the events that caused the death , failing which the authorities will be held responsible for the purposes of A rticle 2 of the Convention : strong presumptions of fact will arise in respect of death occurring during that detention . T he burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation ( see, for example, mutatis mutandis , Velikova v. Bulgaria , no. 41488/98, § § 70 , ECHR 2000 ‑ VI ).

8. I n the instant case the treatment administered to the applicant ’ s partner after he was taken ill do es not appear to be at issue ; that is in any event the conclusion of the e xperts appointed by the investigating judge, who found the treatment to have been “i n conformity with current medical knowledge ” ( report of 2 May 2001). The foreseeability of the events is also difficult to establish .

9. Nevertheless , I consider that Mr Sliti ’ s detention in a place with no medical facilities and no organised medical follow-up in itself endangers the health and life of those concerned [2] and , as such , discloses neg ligence on the part of the aut horities : the State ’ s responsib ilit y is engaged under Article 2 on account of the death alone , in such circumstances , of a person deprived of their liberty in such a place , unless it is shown that there is no link between the death and the lack of adequate m e dical care . In other words, the above-mentioned principle of the pr e s umpt ion of responsibility of the State has to apply .

Two reports by the European Committee for the Prevention of Torture and Inhuman or Degrading Trea tment or Punishment (“CPT” – see paragraphs 22-23 of the judgment ) show that at the t ime of the facts of this case “ the holding conditions at Marseilles- Arenc Administrative Detention Centre left a lot to be desired : there was no provision for any specific medical attention or nurs ing cover ; m edicines were distributed by the sur veillance staff (police officers) “in accordance with the needs expressed by the detainee s ” . According to the CPT, “i n addition to the difficulties in seeing a doctor, the situation inevitably gave rise to unacceptable consequences from a medical-ethics standpoint” .

I t is therefore clear that at the material time there was no medical infrastructure or medical staff at Arenc and that the medicines were distributed to the detainees by police officers. Furthermore , in the pr e sent case, notwithstanding Mr Sliti ’ s serious medical history and the heavy medica tion that had to be administered to him, the authorities were not concerned about his refusal to take his medicine or his state of agitation, and omitted to seek medical advice immediately . In my view , that amounts to a form o f n e gligence a ttributable to the respondent State . As the Government have not provided any evidence to show th at there is no link between that ne gligence and Mr Sliti ’ s death, I consider that there has been a vio lation of A rticle 2.

10. I consider that, in the light of my conclusions under A rticle 2, it is not necessary to examine the complaint under Article 1 3 of the Convention .

[1] 1. Given the close affinities between Articles 13 and 35 § 1 regarding the concept of effective remedy (see, inter alia , Kudla v. Poland [GC], n o. 30210/96, § 152, ECHR 2000-XI), these two questions merge together in the instant case .

[2] 1. As reiterated in paragraph 28 of the judgment, the Court has held, in the context of Article 3, that the authorities have an obligation to protect the health of persons deprived of liberty .