cells, particularly in cells on the ground and lower floors, of which their occupants quite rightly
complain.
In numerous institutions (including establishments provided for under the “thirteen
thousand” programme) the electrical fittings are not adequate to needs. Reports were issued in
2012 concerning several institutions in which prisoners cannot hope to have the benefit of
hotplates for cooking or (in one of them at least) refrigerators. We know that in the absence of
hotplates one alternative is provided by “fuel tablets”, which users are strongly advised against
using in confined spaces due to carcinogenic risks. In 2012, the Contrôleur général referred the
possibility of prohibiting the purchase of these tablets in prison shops to the head of the prisons
administration, without receiving an answer to date.
In most cases exercise yards lack toilet facilities or, when they do exist, they are in such a
poor state as to be unusable. It is recalled that persons who go down for a walk have to wait until
the exercise period is over before returning to their cells. Serious improvement needs to be made
on this point.
2.5 Treatment in Hospitals without Consent
2.5.1 Background details
In a situation that has been marked for several years by a considerable increase in measures of
hospitalisation without consent143, the application of the Act of 5th July 2011, which appreciably
reformed procedures in this regard, is still a major concern in 2012.
2.5.1.1 The Scope of the Act of 5th July 2011
In the first place, the Constitutional Council has been able to assess the constitutionality of the
law that was made necessary by its rulings of 2010 and 2011. If an illustration were needed of the
increased capacity for legal review of the law introduced by the constitutional reform of 2008,
which introduced priority preliminary rulings on constitutionality, it could easily be provided by
the question of treatment without consent.
Indeed, on a question referred to it by an association, the Constitutional Council gave its
verdict on 20th April 2012144 with regard to the law of 5th July 2011 and, more specifically, with
regard to three of the provisions thereof, which are here examined in increasing order of
importance.
The first concerns scenarios in which judges decide to discontinue proceedings or find an
absence of criminal responsibility; the provisions of the law provide that they may, when they
consider that the person concerned presents a serious danger for public order due problems of
mental health, refer the matter to the departmental committee for psychiatric treatment, on the
one hand, and the prefect on the other hand. The latter may, on production of a medical
certificate, decide to have the person committed for psychiatric treatment 145. The Constitutional
Council censured this provision, on the grounds that it had not been accompanied with adequate
guarantees in the Act, in particular insofar as such proceedings were possible whatever the
offence committed and its degree of seriousness and that the person subject to trial was not
143
This does not mean that the number of persons hospitalised without consent has increased to the same extent;
several successive measures may be taken with regard to the same person.
144
N° 2012-235 QPC, Association de réflexion et de proposition d’actions sur la psychiatrie [“Association for
nd
reflection and proposals for action on psychiatry”]. La semaine juridique, 2 July 2012, note Péchillon.
145
Committal for psychiatric treatment at the request of a representative of the State (ASPDRE), this measure was
formerly referred to as hospitalisation by court order (hospitalisation d’office).
64
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