The degrading treatment of a prisoner and the incomplete investigation of the case violated the substantive and procedural aspect of Article 3 of the ECHR

JUDGMENT

J.M. and others v. France 5.12.2019 (no. 71670/14)

see here 

SUMMARY

The case concerned the applicant’s complaints of inhuman and degrading treatment and
disproportionate use of force by prison staff while he was in detention, and his allegation that the
subsequent investigation had been ineffective and lacked independence.

The Court held that the applicant had been subjected by prison wardens to inhuman and degrading
treatment on 5 and 6 July 2007. During the investigation – which had ended with a decision that
there was no case to answer – the investigating judge and the Investigation Division appeared to
have applied different criteria in assessing the witness statements. The credibility of the wardens’
statements should have been carefully checked. The Court therefore found that the applicant had
not had the benefit of an effective investigation.

PROVISION

Article 3

PRINCIPAL FACTS

The applicant, J.M., is a French national who was born in 1981 and lives in Lyons.

On 5 July 2007 J.M., who had asked to be transferred to a prison closer to his family, deliberately cut
himself on the forearm. He was taken to the medical wing, where the doctor refused to send him to
a hospital psychiatric unit as J.M. had requested, but recommended that he be transferred to
another prison. J.M refused to return to his cell and was placed in a waiting room. In view of the
applicant’s violent conduct, the governor decided to transfer him to the punishment wing. After
further incidents and fresh discussions, J.M. agreed to be placed in a cell in the segregation unit
pending his transfer to another prison, planned for the following day. During the night J.M. set fire
to papers in his cell; the wardens intervened with a fire hose. J.M., who was soaked, was again
transferred to a cell in the punishment wing.

On 6 July 2007, during his transfer from Salon-de-Provence Prison to Varennes-le-Grand Prison, J.M.
was placed in the care of three wardens following fresh incidents. His feet were attached with
standard-issue restraints and he was handcuffed. Since he was wearing only a T-shirt, a warden gave
him a sheet to cover himself before he entered the police van. On arrival at Varennes-le-Grand
Prison, J.M. was practically naked; he was wearing a sports top and the sheet had slipped from his
shoulders. He had bruises on his face, neck and chest. He claimed to have been subjected to violence
by prison wardens before leaving Salon-de-Provence Prison.

On the same date an in flagrante procedure was opened by the public prosecutor and entrusted to
the gendarmerie. The preliminary investigation was discontinued on the grounds that the
investigation had not enabled the offence to be made out. At the close of an internal administrative
investigation instituted on the same day, 6 July 2007, the investigator concluded that warden M.Q.,
who had been responsible for the transfer, had committed a disciplinary offence in leaving the
applicant wearing only a T-shirt and a sheet. The warden was temporarily removed from his duties.
At the end of 2008 the general inspectorate of prison services held that, as far as the transfer
conditions were concerned, M.Q. ought to have waited for the prison’s clothing store to open and
clothes to be issued before leaving for Varennes-le-Grand.

On 8 January 2009 J.M. lodged a complaint for acts of torture and barbarity by persons exercising
public authority involving the use of a weapon, and applied to join the proceedings as a civil party.
On 15 May 2009 a judicial investigation was opened. On 4 July 2012 the investigating judge made an
order finding that there was no case to answer, holding that the investigation had not enabled the
charges to be made out. J.M. lodged an appeal. The Investigation Division of the Court of Appeal
upheld the decision finding no case to answer. An appeal on points of law was dismissed by the
Court of Cassation.

THE DECISION OF THE COURT…

Article 3

Substantive aspect

It was not disputed that on 5 and 6 July 2007 the prison wardens had repeatedly used force against
the applicant. Four medical certificates had all noted numerous injuries. In addition to the
applicant’s physical suffering, the Court considered that the treatment to which he had been
subjected had caused him fear, anguish and mental suffering. It therefore remained to be
ascertained whether or not the physical force used against the applicant had been strictly
necessitated by his conduct.

The Court noted, like the domestic courts, that the applicant had been in an extremely agitated state
at the time. However, it observed that he had also been in psychological distress. On the morning of 5 July 2007 he had been taken to the outpatient department after deliberately cutting himself on the arm. Hence, the applicant had been particularly vulnerable owing to his psychological problems and
the fact that he was in detention.

As to the risk of fire, the Court noted that the prisons inspectorate had itself found that the use of a
fire hose had been disproportionate in the circumstances. The use of a fire hose rather than an
extinguisher had been bound to flood the cell. This lack of judgment on the part of the warden had
led to the applicant and his belongings being drenched unnecessarily, creating a feeling of
humiliation. The Court also observed that the various medical certificates had noted numerous
bruises on the applicant’s body. Despite the preliminary and judicial investigations carried out, the
cause of the 18 cm strangulation mark on the applicant’s neck had never been established. Lastly,
when being transferred from Salon-de-Provence Prison to the prison at Varennes-le-Grand, the
applicant had been dressed only in a T-shirt with just a sheet to cover himself. Such treatment had
caused feelings of arbitrariness, inferiority, humiliation and anguish and showed a serious lack of
respect for his human dignity.

The Court therefore held that the applicant had been subjected to inhuman and degrading
treatment. It followed that there had been a violation of the substantive aspect of Article 3.
Procedural aspect

The Court noted that independent investigations had been conducted speedily. On the very day of
the applicant’s arrival at Varennes-le-Grand Prison, the public prosecutor’s office had instituted an
investigation of its own motion into the circumstances of the applicant’s transfer and his allegations
of violence. An investigation had been carried out by a judge who had not merely echoed the
findings of the internal administrative investigation and the investigation by the prisons
inspectorate, but had interviewed and questioned the applicant and all the wardens involved before
issuing a reasoned decision finding that there was no case to answer.

Nevertheless, the Court noted that the investigation had not led to the identification and
punishment of those responsible for the inhuman and degrading treatment it had established.
In the Court’s view the investigating judge and the Investigation Division appeared to have applied
different criteria in assessing the different witness statements, with the applicant’s statement being
considered subjective, unlike those of the wardens. The credibility of the latter’s statements should
have been checked carefully. Furthermore, certain measures required in order to elucidate the facts
had not been ordered. For instance, no medical and technical expert report had been ordered with a
view to establishing the cause of the strangulation mark that had been observed.

The Court held that the applicant had not had the benefit of an effective investigation, and found a
violation of the procedural aspect of Article 3.

Just satisfaction (Article 41)

The Court held that France was to pay the applicant 18,000 euros (EUR) in respect of non-pecuniary
damage.

 


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