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On September 12th 1998 around 2pm, Mr. Alain Dubois was found dead in a public park near the railway station of Pau. He had suffered serious head injuries and multiple trauma.

The police officers in charge of the investigation didn’t treat the area as a scene of crime. They didn’t collect and safeguard any evidence on the scene and on the body. They didn’t document postmortem changes to establish the location of injury and the time and place of death. No documentation of the social, medical and mental health history of the decedent was made. The police officers didn’t launch a witness appeal. Some pictures of the body were taken and a quick visual examination was made by a family doctor.

Around 6pm, a police officer notified the next of kin of the death of Mr. Dubois. He added that the police investigation on cause of death (art.74 of the code of penal procedure) concluded that his death was a suicide. On September 15th 1998, the prosecutor Dreno closed the investigation without ordering an autopsy, and authorized the release of the body for burial. On September 18th 1998, the funeral took place.

On September 24th 1998, the family of the decedent pressed charges for murder and requested an autopsy. It was the start of a 8 years  legal battle which cost the family €25,000. They had to pay a large deposit and hire several lawyers to request that the police conduct a second investigation and to have them perform essential investigative work (DNA testing, hair analysis, autopsy, blood test, reenactment, interrogation of witnesses). Several of their requests were denied (witness appeal, interrogation of witnesses). On August 9th 2006, the investigative judge decided to close the investigation. On October 24th 2006, the appeal court of Pau confirmed his decision. On May 9th 2007, the supreme court (Cour de cassation) rejected the appeal of the family without holding any hearing (art. 567-1-1 of the code of penal procedure).

On November 17th 2007, the family filed an application with the ECHR (see below) arguing that the authorities didn’t act of their own motion for the the second investigation. The applicants added that the 8 years investigation suffered considerable delays and was conducted only to confirm the findings of “suicide” of the first investigation. They alleged a violation of articles 2, 6-1 and 13 of the Convention. The application was not communicated by the Court to the agent of the French Republic.

On July 7th 2011, the grand chamber of the Court stated again in its judgment Al-Skeini and others v. UK (55721/07) : “165. What form of investigation will achieve the purposes of Article 2 may vary (..). However, (..), the authorities must act of their own motion (..). 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 (..) 166. (..) The authorities must take the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye-witness testimony, forensic evidence and, where appropriate, an autopsy (..).

On November 15th 2011, the Judges of the 5th section found the application inadmissible on the ground that several requests of the family “were granted within reasonable time” in the 2nd investigation. They added that the 2nd investigation was effective. The Judges didn’t rule on the effectiveness of the first investigation and on the fact that the 2nd investigation was at the initiative of the next of kin.

Mr. Ernst Haas is suffering from bipolar disorder for the last 20 years. On July 1st 2004, he became a member of the NGO Dignitas in order to commit suicide. Then, he requested in vain from several psychiatrists to prescribe him the lethal drug pentobarbital sodium. On August 3rd 2005, the health department of the county of Zürich refused to deliver him this drug without prescription.

On November 17th 2005, the administrative tribunal of Zürich rejected his challenge of the decision of the health department. On December 20th 2005, the federal department of interior refused also to deliver him the lethal drug without prescription. On November 3rd 2006, the federal tribunal rejected his appeal and ruled that a mental health exam was required before prescribing the lethal drug.

On July 18th 2007, the applicant lodged his case to the Court arguing that that the refusal to deliver him the lethal drug without a prescription and a mental health exam was a violation of article 8 of the Convention. On October 16th 2008, the application was communicated to the agent of the Swiss government. On November 17th 2008, The NGO Dignitas submitted a brief amicus curiae to the Court (see below).

On January 20th 2011, the Court found no violation of article 8 of the Convention on the ground of the “margin of appreciation” and didn’t rule if States have a positive obligation to ensure that one can end his life with dignity.  The appeal to the grand chamber was not accepted by the Court. The applicant was represented by Me Patrick Schaerz (Zürich) .

On June 10th 1998, Mr. Kamel Ketreb was detained without bail in the notorious prison “La Santé” awaiting trial on assault charge. He was examined several times by psychiatrists. Despite his mental illness, he was placed three times in solitary confinement as a displinary measure. During his second placement in solitary confinement, he attempted two times to hang himself according to a doctor of the prison.

On May 20th 1999, he was placed for the third time in solitary confinement for 15 days. On the same day, prison guards pepper sprayed him in his displinary cell. On May 21st 1999, he showed his injured forearms to his sister and his t-shirt was covered with blood. On May 24th 1999, a prison guard found him dead, hung to the ceiling of his cell. On June 17th 1999, the prosecutor of the Republic of Paris closed his administrative investigation on the cause of death and didn’t request the opening of a criminal investigation.

On July 27th 1999, the sister of Mr. Ketreb filed a criminal complain to the investigating judge for “involuntary manslaughter“.

In January 2000, Doctor Veronique Vasseur published a book on his experience of 8 years as the chief doctor of the ethnically segregated prison “La Santé”. She described nightmarish condition of detention and the lack of access to health care for detainees suffering from mental illness. The book stirred such an outcry that a group of Senators opened a full investigation with public hearings and visits of French prisons. On June 29th 2000, they published an extensive report on the condition of detention in French prisons with alarming conclusions. It confirmed many of the findings that the CPT made following its visits of the prison “La Santé” in 1996 and 2000.

On April 8th 2008, an investigating judge sent the ex-director of the prison “La Santé” and the health care provider AP-HP to trial. But the prosecutor of the Republic of Paris, Jean-Claude Marin appealed the decision to the judges of the investigation chamber of the appeal court of Paris. On December 3rd 2008, the 3 judges of the investigation chamber dismissed all charges.

On June 3rd 2009, the applicants, sisters of Mr. Ketreb submitted an application to the European Court of Human Rights arguing that the absence of health care in the prison and lack of surveillance of their brother were a violation of article 2 of the Convention. They added that the disciplinary measures of solitary confinement were a violation of article 3 of the Convention. They are represented by Me J. Bertrand (Paris). On March 29th 2010, the application was communicated to the agent of the French government with questions to be answered within 16 weeks.

On February 27th 2011, Mr. Jean-Marie Delarue controller of the French detention facilities refused to communicate us the report of his 2009 visit of the prison “La Santé” even though the French FOIA agency (CADA) was favorable to this release (2011/0462). Mr Jean-Marie Delarue is also one of 4 adhoc judges submitted by the French government to the ECHR.


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