... THE FACTS [TRANSLATION]

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1 PAPON v. FRANCE DECISION 1 [TRANSLATION]... THE FACTS The applicant [Mr Maurice Papon] is a French national, born in 1910 and currently in custody in the Santé Prison in Paris. He was represented before the Court by Mr Francis Vuillemin and Mr Jean-Marc Varaut, both of the Paris Bar. The respondent Government were represented by their Agent, Mr Ronny Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs. A. The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 2 April 1998 the Gironde Assize Court found the applicant guilty of aiding and abetting crimes against humanity and sentenced him to ten years imprisonment. On 21 October 1999 the Court of Cassation ruled that he had forfeited his right to appeal on points of law because he had failed to surrender to custody. Those proceedings gave rise to application no /00. From 22 October 1999 to 13 November 1999 the applicant was held in Fresnes Prison, initially in the prison hospital and then under normal conditions in a cell in the prison s solitary-confinement wing. On 13 November 1999, on an application by his lawyer, who considered the conditions in which the applicant was being held unacceptable (particularly the very low temperature in his cell), the prison authorities decided to transfer him to the Santé Prison in Paris on the ground that he could be provided there with conditions of detention that were more suitable. Since then the applicant has been serving his sentence at the Santé Prison. 1. Applicant s state of health and medical supervision The applicant is currently 90 years old and had a triple heart bypass operation in During the investigation of his first application for a pardon on medical grounds (see below), it was noted in a preliminary expert report of 4 January 2000 prepared for the Principal Public Prosecutor at the Paris Court of Appeal, that the applicant s heart condition had deteriorated and the recommendation was made that he be immediately transferred to a specialist cardiology unit where it could be decided whether he was in urgent need of a pacemaker. He was fitted with a pacemaker on 12 January 2000.

2 2 PAPON v. FRANCE DECISION On 2 April 2001 Dr Sicard, the head of the Internal Medicine Department at Cochin Hospital prepared a medical certificate at the applicant s request that read as follows: I, the undersigned, certify that I admitted Mr Maurice Papon to hospital in the Internal Medicine Department of which I am the head from 20 to 28 March I will not go back over the patient s previous heart problems, for which he was hospitalised and provided with other medical certificates in 1999 and The patient is currently suffering from increasingly incapacitating angina. For three months now he has found it difficult to climb the stairs (two floors) leading up to the visiting room. This difficulty in getting up stairs, which amounts almost to disablement, has prompted him to stop taking walks, especially as he now has chest pains from time to time even when resting. Clinical examination The patient s general condition is good; he is perfectly aware and lucid. His heart sounds are regular and his blood pressure reading is 140/80. He has some oedema of the lower limbs, probably linked to the reduced intake of diuretics, which he does not tolerate well urologically or in terms of hydration. He gets extremely tired when he is dehydrated. His pacemaker is working well and is due to be checked in a few days time. Laboratory test results None of the tests reveals any renal, haematological, or electrolyte anomalies or any biochemical evidence of inflammation. The patient s anticoagulant treatment is well balanced. Scanning results X-rays of the lungs are normal. A cardiac ultrasound scan shows that the left ventricle is functioning normally without any pulmonary hypertension. A cardiac scintigram before and after injection of thallium after 24 hours shows that the two low-uptake areas in the posterior and anterior regions are myocardially viable, meaning that the strain on the myocardium remains partly reversible. Neither an exercise test (even mild) nor a coronarography were carried out because of the attendant risks. General conclusions It is likely that the coronary arteries, which have undergone a triple bypass, have become less permeable; this would explain the recurrence of angina during physical exertion. Although there is no congestive heart failure, the patient s progressive coronary disease means that there is still a worrying risk of his suffering a fatal heart attack and the possibility of sudden death in prison cannot be ruled out, even though it is entirely possible that his heart function, which is relatively well preserved in itself, may be compatible with living a good deal longer. It appears obvious to us, however, that keeping this 90-year-old man with a vascular and coronary disease in prison is not likely to lessen the danger of his sudden death. According to the information provided by the Government, the applicant s health is monitored by doctors and nurses from the prison s

3 PAPON v. FRANCE DECISION 3 Outpatient Consultation and Treatment Unit (UCSA), which was set up inside the prison under an Act of 18 January 1994 (it provides a doctor s surgery, twice-daily nurse clinics and weekly laboratory tests and electrocardiographic check-ups), and by specialists consulted in hospitals outside the prison (cardiological consultations in Cochin Hospital, a period spent in Jean-Rostand Hospital for a cardiovascular check-up and fitting of a pacemaker, and regular checks on the pacemaker in the same hospital). 2. Applicant s conditions of detention The applicant is being held in an individual cell in the prison s VIP wing. His cell is 12 sq. m in area and is furnished with a bed, two tables, two cupboards, two chairs, a television and, at the medical service s request, a medical chair and an automatic air humidifier. There is an alarm bell at the head of the applicant s bed linked to the control centre, which is permanently manned by a warder. In one corner there is a lavatory and a washbasin; the shower is not far away and has been equipped with a seat as it does not have any grab bars. The applicant himself is responsible for cleaning and tidying his cell, with the assistance of another inmate once a week if need be. The applicant finds it difficult to reach the exercise yard because of the steps leading to it. He has been given permission to walk along the prison landings twice a day. He has regular visits from his family and his lawyers. 3. Applications for a pardon on medical grounds On 23 December 1999 one of the applicant s lawyers applied to the French President for a pardon on medical grounds. The application was refused on 7 March 2000 after an expert medical report had been obtained. On 20 June 2000 the lawyer submitted a further application for a pardon on medical and humanitarian grounds, which was refused on 24 October 2000 after a medical examination by two experts on 21 July Neither of these expert reports was communicated to the applicant. 4. Letters from the applicant to the prison governor On 19 March, 21 April and 1 July 2000 the applicant sent letters to the governor of the Santé Prison, in which he complained that the light was turned on several times a night at around 4 a.m. or 5 a.m. (letters of 19 March and 21 April) and that a warder had refused to allow him to take a walk on the landings (letter of 1 July). B. Relevant law 1. French law

4 4 PAPON v. FRANCE DECISION French law does not set an upper age-limit for pre-trial detention or the serving of prison sentences. However, an offender s state of health (in which age may be an aggravating factor) may be taken into account when an application for a pardon from the French President is being considered (Articles 17 and 19 of the Constitution) or when it is being decided whether to grant parole under Article 729 of the Code of Criminal Procedure, which provides: Parole is designed to encourage the rehabilitation of convicted prisoners and prevent them from reoffending. Convicted persons serving one or more prison sentences may be granted parole if they have made serious efforts to readjust to society, particularly if they can show that they have engaged in occupational activities or regularly attended an education or vocational training course or have taken part in a work experience scheme or had a temporary contract of employment with a view to their social integration, or that their presence is essential to the life of their family, or that they have to undergo treatment or that they have made efforts to compensate their victims. Subject to Article of the Criminal Code, parole may be granted if the length of the sentence already served by the prisoner is at least equal to that remaining to be served. However, recidivists covered by Articles 132-8, and of the Criminal Code may only be granted parole if the length of the sentence already served is at least double that remaining to be served. In the cases provided for in this paragraph, the qualifying period may not exceed fifteen years Comparative law In criminal law, advanced age is not a bar to prosecution, pre-trial detention or a prison sentence in the Council of Europe s member States. Age may, however, be taken into account, together with other factors such as state of physical or mental health, when sentences are being determined. In Andorra, in particular, the courts may, in respect of offences punishable with a prison sentence of less than three years, substitute another penalty for the custodial penalty in view of the character and the general circumstances of the accused. In three countries a sentence of life imprisonment cannot be imposed on a person above a certain age: 60 in Romania and Russia and 65 in Ukraine; in Greece life imprisonment is reduced to 16 years for people over 70. As far as the execution of sentences is concerned, age is rarely taken into account per se but in conjunction with state of health. In Luxembourg, however, prison sentences for minor offences are not executed if the convict is over 70 (in the case of serious offences, sentences are served in a semiopen prison). Two countries (Italy and San Marino) make provision for courts to substitute house arrest for a prison sentence where the convicted person is partially disabled and over 60 (in Italy) or 65 (in San Marino). German law also provides for the enforcement of a sentence to be deferred or suspended in the event of illness.

5 PAPON v. FRANCE DECISION 5 In a number of countries age is taken into account for parole which is generally granted sooner once the prisoner has reached a given age, namely 70 in Spain and Greece, and 60 for men and 55 for women in Romania and for pardons. There are also several countries in which prisoners are not required to work beyond a certain age. COMPLAINTS Relying on Article 3 of the Convention, the applicant submitted in his initial application that keeping a man of over 90 years of age in prison was in itself contrary to that Article and that the conditions of detention in the Santé Prison were not compatible with extreme old age. In his observations in reply he stated that it was the combination of his advanced age and his state of health which made his imprisonment incompatible with Article 3, and he drew attention to several aspects of the conditions of his detention and mentioned various incidents which he considered to be degrading and humiliating. THE LAW The applicant alleged a breach of Article 3 of the Convention, which provides: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. (a) The applicant complained about the conditions of his detention in solitary confinement in Fresnes Prison from 5 to 13 November. Under Article 35 1 of the Convention, the Court may only deal with a case after all domestic remedies have been exhausted and within a period of six months from the date on which the final decision was taken. Where an applicant complains of a continuing situation, the period of six months set by Article 35 1 begins when the situation ends (see, among other authorities, Agrotexim Hellas and Others v. Greece, application no /89, Commission decision of 12 February 1992, Decisions and Reports 72, p. 148 at p. 167). As the application was lodged on 10 January 2001, this part of it is out of time and must be rejected in accordance with Article 35 4 of the Convention.

6 6 PAPON v. FRANCE DECISION (b) The applicant mentioned a number of incidents in his observations in reply. He had been struck by a warder and some of his mail, including letters from his Swiss lawyer, had been opened by the prison authorities. The Court notes that, supposing those facts to be established, the applicant made no mention of them in his letters to the prison governor and in any event did not bring any proceedings in the appropriate courts. That being so, he failed to exhaust domestic remedies in this respect and this part of his application is inadmissible under Article 35 4 of the Convention. (c) The applicant submitted that the combination of his extreme old age and his state of health meant that his detention was in breach of Article 3 of the Convention. The Government were of the opinion that the conditions of the applicant s detention satisfied all the criteria established by the case-law relating to Article 3 and referred, in particular, to the Raninen v. Finland judgment (16 December 1997, Reports of Judgments and Decisions 1997-VIII, pp et seq.) and the Kudła v. Poland judgment ([GC], no /96, ECHR 2000). According to the Government, the applicant was under constant medical supervision as part of a health-care arrangement capable of dealing with any emergency. In any case, it seemed that he did not dispute the standard of the medical care provided and was not arguing that it was impossible for him to serve his sentence for health reasons but was seeking to call into question the very principle of his being in prison. He was being held in particularly favourable conditions which made full allowance for his situation, and his advanced age was not in itself a sufficient ground for finding that it was impossible for him to be kept in prison. The Government also pointed out that the complaints raised by the applicant in his letters to the prison governor had been successively dealt with and some of the problems had been solved (among other things, the chain on his fanlight had been lengthened and a seat had been installed in the shower). Lastly, while observing that it had never been the purpose of imprisonment to improve a person s state of health, the Government argued that Dr Sicard s medical report noted the applicant s good general condition and did not conclude that his state of health was incompatible with his continued detention. In the final analysis, the Government submitted that his imprisonment did not exceed the unavoidable level of suffering inherent in detention and that his continued detention in the Santé Prison did not amount to inhuman and degrading treatment within the meaning of Article 3 of the Convention. The applicant submitted that any form of imprisonment of a man of over 90 constituted in itself and in its essence a breach of Article 3 of the Convention. He cited recent parliamentary reports on French prisons which addressed the subject of old age in prison and raised the question whether the sick or the elderly should be kept in prison. He also drew attention to the

7 PAPON v. FRANCE DECISION 7 fact that the former French Minister of Justice, Robert Badinter, and the main French human-rights associations had come down in favour of his release. The applicant also pointed out that he had submitted two applications to the French President for a pardon on humanitarian grounds and that, as part of the consideration of his case, he had been examined by experts on two occasions. However, the reports had not been communicated to him even though, during the first expert appraisal, one of the conclusions of a preliminary report of 4 January 2000 had been that there was a danger compromising the patient s chances of survival if he continue[d] to be held in detention in his cell. In the applicant s opinion, the mere fact of holding a person of over 90 in the conditions that obtained in French prisons amounted in reality, albeit not in appearance to applying the death penalty by precipitating the prisoner s death. Lastly, in his observations in reply, the applicant complained about various aspects of his conditions of detention (the air humidifier produced stifling clouds of steam; the chain on the fanlight was too short, so that he had to climb on a chair to open it; there were no grab bars in the shower; his light was turned on at night; and he could not reach the exercise yard because the steps leading to it were too steep) and gave details of his various health problems (weak heart, lungs, and legs, and the risk of a hernia) which were worsened by the constant stress of his imprisonment. He also complained about a number of humiliating incidents and practices (body searches; police escort when he went to hospital; assault by a warder who he said had struck him; opening of mail from various correspondents, including a clergyman and his own Swiss lawyer). He also objected to the standard of his medical treatment. In conclusion, the applicant considered that the combination of his extreme old age and his ill health made his imprisonment inhuman and degrading. The Court observes, first of all, that the applicant is currently serving a ten-year prison sentence imposed on him by the Gironde Assize Court on 2 April 1998, when he was 88 years old. The Court s task is not to assess whether that sentence was justified but to ascertain whether its enforcement is in breach of Article 3 of the Convention. If it is to fall within the scope of Article 3, ill-treatment must attain a minimum level of severity. The assessment of this minimum is, in the nature of things, relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration and its physical or mental effects and, in some instances, the sex, age and state of health of the victim (cf. the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports 1998-VIII, p. 3288; 94, and see the Kudła judgment cited above, 91).

8 8 PAPON v. FRANCE DECISION Where persons deprived of liberty are concerned, Article 3 compels the State to ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and wellbeing are adequately secured by, among other things, providing him with the requisite medical assistance (see Kudła judgment cited above, 94). In the instant case the applicant relies essentially on his extreme old age, combined with his state of health. The Court notes that advanced age is not a bar to pre-trial detention or a prison sentence in any of the Council of Europe s member States. However, age in conjunction with other factors, such as state of health, may be taken into account either when sentence is passed or while the sentence is being served (for instance when a sentence is suspended or imprisonment is replaced by house arrest). While none of the provisions of the Convention expressly prohibits imprisonment beyond a certain age, the Court has already had occasion to note that, under certain circumstances, the detention of an elderly person over a lengthy period might raise an issue under Article 3. Nonetheless, regard is to be had to the particular circumstances of each specific case (see Priebke v. Italy (dec.), no /99, 5 April 2001, unreported, Sawoniuk v. the United Kingdom (dec.), no /00, 29 May 2001, unreported, and also, mutatis mutandis, V. v. the United Kingdom [GC], no /94, , ECHR 1999-IX). The Court has examined all the documentary evidence submitted by the parties. From these it emerges that, although the applicant is over 90 and has health problems which restrict his freedom of movement (in particular, heart problems as he has had a triple heart bypass operation and has had a pacemaker fitted), Dr Sicard describes his overall condition as good and finds that he is perfectly aware and lucid and shows no signs of dependence. Although the applicant objects to certain aspects of the medical treatment he is undergoing, the Court notes that he is under regular medical supervision and receives treatment both from the medical and paramedical staff in the prison and through hospital consultations and periods spent in hospital. The Court has also examined the conditions in which the applicant is being held. While it is certain that he is not enjoying the same quality of life as he would if he were still at liberty, the Court notes that the national authorities have made as much allowance as possible for his state of health and his age. The Court observes, in particular, that some of the matters raised by the applicant (the absence of grab bars in the shower, the short chain on the fanlight and the steep stairs preventing him from reaching the exercise yard)

9 PAPON v. FRANCE DECISION 9 have now been resolved (a seat has been installed in the shower, the chain has been lengthened and the applicant now has permission to walk on the landing). Some of the other inconveniences he mentioned (such as his light being turned on by the warder in the night in order to carry out a check) form part of the constraints imposed on all prisoners for reasons of surveillance and security. It is also clear from the case-file that the applicant keeps up a social life and receives regular visits from his family, friends and lawyers. In conclusion, having assessed the facts as a whole, the Court finds that, as matters stand at present, the applicant s situation does not attain a sufficient level of severity to come within the scope of Article 3 of the Convention (cf. the Kudła judgment cited above, 99, and see the Priebke decision cited above). The Court points out that, if the applicant s health problems, taken together with his extreme old age, were to worsen, French law empowers the national authorities to intervene in various ways. Under Article 729 of the Code of Criminal Procedure, as amended by the Act of 15 June 2000, prisoners may be granted parole if, among other things, they can prove that they have to undergo treatment. Furthermore, where particularly serious circumstances call for humanitarian measures, the French President may exercise his prerogative of mercy at any time, as provided in Articles 17 and 19 of the Constitution. It follows that the application is manifestly ill-founded within the meaning of Article 35 3 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.

COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS

CONSEIL DE L EUROPE COUNCIL OF EUROPE COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS FIRST SECTION CASE OF HÉNAF v. FRANCE (Application no. 65436/01) JUDGMENT STRASBOURG 27 November