Case of Kerbach ZANNOUTI and others vs. France n°6913/23

On February 4, 2023, Julien MARTIN lodged an application with the European Court of Human Rights against France for violation of article 2 (right to life) of the European Convention on Human Rights.

The case concerns the death of a patient hospitalized in a psychiatric ward while being physically restrained by security guards and hospital staff.

The applicants are the sisters and brother of Y. Z., who was born in 1976 and suffered from schizophrenia. On September 14, 2012, while hospitalized at the request of his family at the EPSAN (Alsace nord public health establishment) in Brumath since September 6, 2012, Y. Z. died of cardiac arrest. The investigation establishes that he had stayed in an isolation room from September 6 to 8, 2012, and then in an open ward.

At the time of his hospitalization, Y.Z was in good physical health, suffering only from obesity and chronic smoking. He had accepted the hospitalization fairly well and was “calm”.

On the night of September 13 to 14, 2012, he was refused a cigarette by the nursing staff, who, faced with his insistence, called in the security guards. As Y. Z. agitated to oppose his entry into an isolation room, he was restrained on the floor by two of the officers, notably with a “neck wrench”. He was held down with the help of nursing staff for around twenty minutes before losing consciousness. Resuscitation by the emergency medical service on the scene was unsuccessful.

On November 9, 2012, the plaintiffs and their parents filed a civil suit. A judicial investigation was opened for manslaughter. The coroner’s report ruled out asphyxia as the cause of death. Following the petitioners’ request, a second forensic report dated January 9, 2018, including the opinion of a cardiologist, confirmed this conclusion and retained a high causal probability of a previously undetected cardiac disorder having led to the patient’s sudden death.

In two rulings of November 8, 2018 and February 4, 2021, the Investigating Chamber of the Colmar Court of Appeal upheld, on the one hand, an order refusing additional investigative measures (the claimants’ new request for a forensic counter-expertise) and, on the other hand, the investigating judge’s February 21, 2020 order dismissing the case, which had concluded that there was no causal link between the death and “any behavior on the part of the EPSAN legal entity and the medical and security personnel”. On October 4, 2022, the Cour de cassation declared the appellants’ appeals inadmissible.

Invoking Article 2 of the Convention in its substantive aspect, the applicants maintain that the use of force which, in their view, led to the death of their relative was neither absolutely necessary nor strictly proportionate to Y. Z. and that the national authorities failed to comply with their positive obligation to protect his life. Under the procedural aspect of this same article, they complain of the lack of effective investigation into the allegations of violation of the aforementioned article 2, in particular due to the refusal of the judicial authorities to order
a new forensic second opinion.

In a letter from Julien MARTIN dated June 26, 2023 and received at the Registry of the European Court of Human Rights on June 28, 2023, the applicants invited the Court “not to exclude that the case could be analyzed under Article 3 (prohibition of inhuman or degrading treatment) of the Convention by virtue of its power of legal recharacterization”.

The case was assigned to a chamber formation (7 judges who decide by majority, usually on the admissibility and merits of the case) and was communicated to the defendant government on October 10, 2023.

In the context of this application, the European Court of Human Rights put the following questions to the parties:

1. Has the right to life of the applicants’ brother, enshrined in Article 2 of the Convention, been violated in this case?
   In particular, in the circumstances of this case, characterized by the fact that Y. Z. was a patient suffering from mental disorders (schizophrenia), hospitalized under duress in order to receive care and as such vulnerable:
   a) did his death result from the use of physical restraint made absolutely necessary and strictly proportionate, within the meaning of paragraph 2 of the above-mentioned article 2 (see, in particular, mutatis mutandis, in the case of law enforcement personnel, Scavuzzo-Hager and others v. Switzerland, no. 41773/98§§ 48-52 and 58-61, February 7, 2006, Saoud v. France, no. 9375/02§§ 102-104, October 9, 2007, Giuliani and Gaggio v. Italy [GC], no. 23458/02§§ 174-182 and 208-210, ECHR 2011 (extracts), and Boukrourou et al. v. France, no. 30059/15§§ 60-61 and 65, November 16, 2017)?
   b) in general, have the domestic authorities complied with their positive obligation to protect Y. Z.’s life within the meaning of Article 2 of the Convention, in particular by taking all necessary measures to prevent it from being unnecessarily endangered, including in the event of the need to resort to force, through the establishment of an adequate regulatory framework (see, in particular, mutatis mutandis, Renolde v. France, no. 5608/05§ 80 and 84, ECHR 2008 (extracts), Giuliani and Gaggio, cited above, §§ 208-210, and Fernandes de Oliveira v. Portugal [GC], n° 78103/14§§ 105-107, January 31, 2019)?
2. With regard to the procedural aspect of this provision (see, among many others, Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000-VII, and Lopes de Sousa Fernandes v. Portugal [GC],
   n° 56080/13, § 214, December 19, 2017), did the investigations carried out in the present case by the domestic authorities into the applicants’ allegations that the right to life of their brother Y. Z., satisfied the requirements of Article 2 of the Convention?
3. Assuming that the right to life of the applicants’ brother, enshrined in Article 2 of the Convention, was not violated, did he suffer inhuman and degrading treatment within the meaning of Article 3 of the Convention (Boukrourou and Others v. France, no. 30059/15, §§ 68-88, 16 November 2017)?

The case thus raises the contradictory question of whether there was a causal link between the force used by the “agents of the state” and the death of Y.Z. in question, and whether the “agents of the state” had preserved the right to life. (Saoud v. France, no. 9375/02October 9, 2007 ; Semache v. France, no. 36083/16, June 20, 2018 ; Kutsarovi v. Bulgaria, no. 47711/19June 7, 2022).

The Court had occasion to apply these principles in the case of the death by postural asphyxia of a young man who had been handcuffed and placed on the ground on his stomach by police officers for more than thirty minutes (Boukrourou v. France, no. 30059/15November 16, 2017). The Court held that it could not be ruled out that the force used had caused the fatal outcome, given that they were concomitant (Boukrourou v. France, cited above, § 60).

Moreover, the Court’s established case law insists on the need to take account of the victim’s state of weakness in the light of the principle of strict proportionality inherent in Article 2 of the Convention. The Court recalls that in order to engage the international responsibility of the respondent State, it is also necessary for the officers to have been reasonably aware that the victim was in a state of vulnerability requiring a high degree of precaution in the choice of “usual” arrest techniques (Scavuzzo-Hager and others v. Switzerland, §61 and Boukrourou v. France, cited above, §§ 60 and 61).

On October 30, 2023, the European Court of Human Rights published on its website the official communiqué on the subject of the case and the questions to the parties.