Information Note on the Court’s case-law 47

November 2002

Mouisel v. France - 67263/01

Judgment 14.11.2002 [Section I]

Article 3

Inhuman treatment

Continued detention of prisoner undergoing treatment for cancer: violation

Facts : In 1996 the applicant was sentenced to fifteen years' imprisonment for armed robbery carried out as part of a gang, kidnapping and fraud.  In January 1999, the doctor in the prison Ambulatory Consultation and Care Unit (UCSA) issued a medical certificate stating that the applicant was suffering from chronic leukaemia.  The applicant applied to the Office of the President of the Republic for a pardon on medical grounds; his app lication was rejected in March 2000. In May 2000, the USCA's doctor certified that the applicant's health was such that he required chemotherapy treatment as a hospital in-patient every three weeks, which meant that the applicant had to be taken from priso n to hospital. Following a further application for a pardon on medical grounds, a court expert was instructed by the Ministry of Justice. The expert's report, which was drawn up in June 2000, concluded that the applicant's health had deteriorated and that he needed to be cared for in a special unit.  The applicant was transferred as a matter of urgency to another prison nearer a hospital and was given a cell of his own. The applicant complained that he had to wear handcuffs. In November 2000, a fresh applic ation for a pardon was rejected and the applicant received a letter from the USCA doctor describing the change in his health and stating that there was no possibility of a recovery. On 22 March 2001, the judge responsible for the execution of penalties rel eased the applicant provisionally and required that he receive treatment or medical care. The judge found, on the basis of the medical certificates, that the applicant's health had become incompatible with his continuing detention since he required medical care in a proper hospital treatment.

Law : Article 3 – The present case raises the question of the compatibility of a state of health giving ground for serious concern with the applicant's continuing detention in prison in such a state.  Following recent c hanges in French law, the health of a person in custody is now among the factors to be taken into account in the procedures for implementing the custodial sentence, especially as regards the duration of detention. Remedies are available before the judge re sponsible for the execution of penalties which, where the health of a person serving a custodial sentence has deteriorated significantly, make it possible to apply for the person concerned to be released at short notice. These remedies are available in add ition to the application for a pardon on medical grounds, which may be granted only by the President of the Republic. However, these mechanisms were not available to the applicant during the period when he was detained for investigations and the only respo nse to his situation which he received from the State was to have his applications for a pardon on medical grounds refused, without being given any reasons.  The applicant could not be granted provisional release until the time when he satisfied the condit ions for obtaining it, in 2001; as regards the possibility to seek suspension of the penalty, that too did not yet exist at the time he was detained.  The applicant's health was deemed to be constantly giving more cause for concern and increasingly inconsi stent with his detention. Both the court expert's report and the letter from the UCSA's doctor emphasized that the disease was progressing and that prison was scarcely appropriate to deal with it, but no special measures were adopted by the prison authorit ies.  Such measures could have included having the applicant admitted to hospital but also any other placement where he would have been monitored and under supervision, especially at nights.  As regards the conditions under which he was taken to hospital, the applicant was chained while under escort, although the extent to which he was chained was reduced in so far as the doctors considered it undesirable.  Although it has not been shown that he was chained while receiving treatment or that the officers fro m the prison escort were present during treatment, it is apparent that the applicant's disease did not exempt him from wearing handcuffs and that the use of handcuffs is normal practice connected with detention.  Regard being had to the applicant's health, to his hospitalisation, to the discomfort of a session of chemotherapy and to his physical weakness, the wearing of handcuffs was disproportionate in light of the requirements of security.  As regards the danger which the applicant represented, and notwit hstanding his criminal history, the Court notes that there is no serious evidence to justify a fear of a significant risk of flight or violence.  Last, the Court notes the recommendations of the European Committee for the Prevention of Torture concerning t he conditions of transfer and medical examination of prisoners in the light of medical ethics and respect for human dignity.  As described by the applicant, the conditions in which he was taken from prison do not seem very remote from the situations with w hich the Committee is concerned on that point.  All in all, the domestic authorities did not ensure that the applicant was given health care which enabled him to avoid treatment contrary to Article 3.  His continuing detention, particularly after June 2000 , constituted a violation of his dignity and caused suffering in excess of that inevitably associated with a custodial sentence and treatment for cancer.

Held : violation (unanimously).

Article 41 – The Court awards the applicant the sum of €15,000 by way o f compensation for the non-pecuniary harm sustained.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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