On September 28th 2005, Mr. M.K was arrested in a theft investigation. During his police custody, he was fingerprinted and photographed. At an unspecified date, his personal data was stored on the police database FAED along with his name, his father’s name, his mother’s name, his date and place of birth, and the offence investigated (art.4 of executive order 87-249).

On February 2nd 2006, the prosecutor of the district of Paris decided not to charge the applicant. On May 31st 2006, the prosecutor rejected the applicant’s request to have his private data deleted from the police database FAED (art.7-1 of executive order 87-249).  On August 26th 2006, a judge of the tribunal of Paris ruled without any hearing that the private data of the applicant should be kept on the police database FAED. On December 21st 2006, a senior judge of the appeal court of Paris ruled without any hearing that the private data of the applicant shouldn’t be deleted on the ground that he was a suspect in an investigation, and that the decision not to charge him was not a ground for deletion.

On October 1st 2008,  the French supreme court (Cour de cassation) rejected his appeal (07-87231).

On February 28th 2009, Mr. M.K filed an application with the ECHR on the ground that the refusal to delete his private data from the police database FAED is a violation of article 8 of the Convention. He added that the absence of hearings on the matter and the non adversarial procedure are violations of article 6-1.

On March 8th 2011, the application was communicated to the agent of the French Republic. On April 18th 2013, the 5th section of the ECHR found a violation of article 8 of the Convention on the ground that the storage of the private data of an innocent citizen on the police database for 25 years wasn’t “necessary in a democratic society“(45-46). It added that the judicial process to have the private data deleted was a “deceptive guarantee” (44). The 5th section also ruled the allegations of violation of article 6-1 to be inadmissible.

The applicant was represented by Me Christophe Meyer (Strasbourg).

At an unspecified date in 1999, the prosecutor of the district of Zürich interrogated several agents of the embassy of the Democratic People’s Republic of Korea (DPR Korea) in Zürich. Mr. Meier and his lawyer were present during the questionings.

On February 3rd 2004, the applicant was charged with defrauding the embassy of DPR Korea. On October 7th 2004, he was condemned by the tribunal of Zürich to 27 months in jail. His conviction was based on the statements of the staff of the embassy to the prosecutor. These prosecution witnesses were absent at the hearing of the tribunal of Zürich.

On November 25th 2005, the superior court confirmed the conviction and the sentence. The prosecution witnesses were also absent at the hearing of the superior court. On January 30th 2007, the supreme court of the district of Zürich dismissed his appeal. On September 3rd 2007, his appeal (6B 51/2007) was rejected by the Swiss supreme court (Federal Tribunal) .

On February 28th 2008, he filed an application to the European Court of Human Rights arguing that to admit testimonies of Korean embassy staff is a violation of article 6-1 of the Convention. He argued that the testimonies of the agents, who enjoy diplomatic immunity (art.31-1 of the Vienna Convention on Diplomatic Relations) were inadmissible because these agents couldn’t be prosecuted for false testimony (art.307 of the penal code).

On June 18th 2013, the majority of the 2nd section of the Court ruled that his application was inadmissible on the ground that “the Court considers it is not necessary to answer the question of the admissibility of the testimonies of diplomatic agents” (54) absent at both hearings. Surprisingly, the section added that the government of DPR Korea may waive the immunity of its diplomatic agents to be prosecuted for false testimony in Switzerland, “if needed for a fair trial” (61).

The applicant was represented by Me Hugo Camenzind (Switzerland) who didn’t answer our request for comments.

On April 19th 2010 at 12:15pm, Ms. Hoyos was placed in police custody for 24 hours in Monaco (art.60-4 of the code of penal procedure) under the control of the prosecutor general (art.60-1, 60-3). At 12:30pm, she requested to speak with a lawyer (art.60-9). Despite her request she was interrogated until her bar appointed lawyer arrived. After meeting with her lawyer, she was subject to a body search (art.60-2) and had her bag searched without her lawyer present. Then, she was further interrogated without any legal assistance.

On April 20th 2010 at 12:15pm, she was informed that a 24h warrant of further detention was granted at 11:40am by a judge at the request of the prosecutor general (art.60-4). After meeting with her counsel, she was again interrogated without any legal assistance.

On April 21st 2010 at 11:00am, she was interrogated without her lawyer by the prosecutor general (art.261) who issued an “arrest warrant” for a 4 month pretrial detention (art.162). Then, she was interrogated without her lawyer by an investigative judge (art.166).

On August 25th 2010, Me Regis Bergonzi filed a motion to dismiss to the investigative judge. On September 1st 2010, the investigative judge ruled that he was not authorized by law to rule on the lawfulness of the police custody (art.209). On September 20th 2010, the appeal court confirmed the ruling. On March 30th 2011, the supreme court (cour de revision) refused to rule on the appeal of the Ms. Hoyos.

On July 23rd 2011, she filed an application to the European Court of Human Rights arguing that the control of the police custody by the prosecutor general, and the fact that she was not brought before a judge were violations of article 5-3 of the Convention. She added that the absence of legal assistance during interrogations, of notice of the right to remain silent, the lack of access of her lawyer to her police file, and the purchase of her prosecution file, were violations of articles 6-1 and 6-3 of the Convention. Furthermore, according to her, the refusal of the supreme court to rule was a violation of article 6-1.

On January 23rd 2012, the application was communicated to the representative of Monaco with questions to be answered within 16 weeks. The applicant is represented by Me Regis Bergonzi (Monaco).

On August 25th 2000, Ms. Horvath, an Hungarian citizen was interrogated in Dutch and English by Dutch speaking police officers of the Ghent police without the assistance of a sworn interpreter (art.47 bis of the code of criminal instruction). On March 27th 2001, she received a summon in Dutch from the prosecutor of the king of the Belgians.

On February 14th 2002, she was condemned in absentia by the tribunal of Ghent. On November 9th 2004, the court of appeal of Ghent condemned her in absentia.

On March 7th 2005, she was assisted by a Hungarian/Dutch interpreter to give her statement to the court during an appeal hearing (art.31 law June 15th 1935). It is unknown if the she was assisted by the interpreter during her meetings with her lawyer and if the key prosecution files and judgments were translated in Hungarian. On January 17th 2006, the court of appeal of Ghent found her guilty and sentenced her to the same penalty as the judgment of the tribunal of Gent. On September 18th 2006, her appeal to the supreme court (Cour de cassation) was rejected (case no P060298N).

On January 26th 2007, Ms. Horvath filed an application with the ECHR on the ground that she was not “informed promptly, in a language which she understood and in detail, of the nature and cause of the accusation against her” in violation of article 6-1-a) of the Convention. She added that she was interrogated by police officers without an interpreter in violation of article 6-1-e) of the Convention.

On January 24th 2012, Judges Berro-Lefèvre (Monaco), Jočienė (Lithuania), Karakaş (Turkey), Popović (Serbia), Raimondi (Italy), Sajó (Hungary),  and Tulkens (Belgium) ruled unanimously her application inadmissible.  They found that Ms. Horvath was informed “of the nature and cause of the accusation against her” because she submitted a brief in Dutch to the appeal court of Ghent and didn’t request during the appeal hearing for a translation in Hungarian of the summon.

The 7 Judges of the 2nd section also concluded that the allegation of violation of article 6-1-e) was inadmissible (art.35-1 of the Convention) on the ground that the applicant didn’t complain to the Belgium supreme court about the lack of interpreter during police interrogation. But according to the judgment of the supreme court (case no P060298N 7.8.9), the applicant explicitly raised this issue. Interestingly, the same section of the Court found an allegation of violation of article 6-1-e) admissible even though the applicant didn’t complain to the Turkish supreme court about the lack of interpreter during police interrogation (Judgment Şaman v. Turkey (35292/05) .25).

On October 26th 2010, the directive 2010/64/EU on the right to interpretation and translation in criminal proceedings was published. It establishes for suspect or accused persons, the right to free interpretation during police interrogation (art. 2.1), meetings with lawyer (art. 2.2) and hearings (art.2.1). It also confers them the right to free translation of any detention decision, any charge or indictment, any judgment (art.3.2) and other “essentials documents” (art.3.1) as well as the right to an effective remedy to challenge refusal to provide free translation (art.2.5) or free interpretation (art.3.5).

The Kingdom of Belgium have to bring into force the law necessary to comply with this directive by 27 October 2013 (art.9).

On June 19th 2009, the French prime minister Fillon issued an executive order 2009-724 forbidding citizens to cover their faces in an area where a gathering is taking place. Covering his own face without a “legitimate reason” and if there is risk of “a breach of public order” carries a penalty of a €1,500 fine (art. R645-14 of the penal code).

On April 11th 2011, Act 2010-1192 entered into force. It forbids citizens to cover their faces in any area open to the public unless the covering is legally required, work-related, on health ground, to practice sport or during artistic and “traditional” events. Under this law, covering his own face illegally carries a penalty of a €150 fine.

The prime minister Fillon requested public employees to forbid entrance to all public facilities (train stations, metro stations, airports, courts, prisons, police stations, museums, schools, universities, hospitals, stadiums, libraries, town-halls, polling stations, driving license offices, immigration and asylum offices…) and to refuse service to citizens on the ground that their face is covered (note PRMC1106214C) even though the citizen is offering to show his face for identification purpose. In Paris, two women covering their face were arrested by male plainclothes police officers preventing them to express their opinions to journalists and to demonstrate peacefully (see below video).

On the same day Ms. S.A.S a Muslim woman, filed an application to the ECHR on the ground that the criminalization of the covering of her face when she is in areas open to public, is a violation of her right to privacy (art.8), her freedom of religion (art.9), her freedom of expression (art.10) and her freedom to peaceful assembly (art.11). She added that the ban from public facilities, the refusal of service and the risk to be fined were degrading treatments in violation of article 3. She stated that these discriminatory policies were also in violation of article 14 of the Convention.

On February 1st 2012, the application was communicated to the agent of the French Republic with questions to be answered within 16 weeks. The applicant is represented by Mr. Sanjeev Sharma (Birmingham, UK).

On August 28th 2001, the antitrust commission (Conseil de la concurrence) opened an investigation on the market of mobile network operators in France. On May 14th 2004, a report made by the consumer protection agency of the ministry of economy and finance (DGCCRF) was transmitted to the antitrust commission. On August 24th 2005, an article in the French weekly Canard Enchaine  revealed some information contained in the report.

On November 30th 2005, the antitrust commission condemned the mobile network operator Bouygues Telecom to a fine of €58 millions (decision 05-D-65) for violations of article L.420-1 of the code of commerce. On December 12th 2006, the appeal court of Paris rejected the appeal of Bouygues Telecom (decision 2006/00048) after receiving briefs from the ministry of economy and finance and the antitrust commission. On June 29th 2007, the appeal of Bouygues Telecom to the supreme court (Cour de cassation) failed (case 07-10303).

On December 20th 2007, Bouygues Telecom filed an application with the ECHR arguing that the lack of public hearing before the antitrust commission gave its decision, the submission of briefs by the ministry of economy and finance, and the antitrust commission during the appeal trial were violations of article 6-1 of the Convention. The applicant added that the leaking of the report to the press was a violation of article 6-2. On January 17th 2012, the application was communicated to the agent of the French Republic with questions to be answered within 16 weeks. The applicant is represented by Me Alain Benabent (Paris).

On December 23rd 2008, Mr. I.M was arrested for “unlawful entry” and for “using forged documents” at the railway station of Cerbère in France. During his police custody, his claim for asylum was not recorded by the police officer. He was then detained awaiting trial. On December 26th 2008, he was condemned in a “fast track” trial to one month in jail for “unlawful entry” (art.L621-1 of the code of migration and asylum) despite article 31-1 of the Geneva Convention of 1951. During his detention, another claim for asylum was not recorded.

On January 7th 2009, the local prefect ordered the deportation of Mr. I.M to Sudan. On January 12th 2009, the appeal against his deportation order was rejected by an administrative judge of the administrative tribunal of Montpellier.

On January 16th 2009, he was detained at the immigration detention center of Perpignan awaiting his deportation to Sudan. On January 22th 2009, his claim for asylum was recorded by OFPRA and classified automatically “fast track” (art.L723-1 of the code of migration and asylum). On January 30th 2009, he was interviewed by a case worker of OFPRA and his application was denied the same day. Mr. I.M appealed the decision to the court (CNDA). Nevertheless, on February 11th 2009, Mr. I.M was brought by French police officers to the consulate of Sudan to obtain travel document for his deportation.

On February 16th 2009, Mr. I.M filed an application with the ECHR on the ground that his deportation to Sudan will be a violation of article 3 of the Convention and that the lack of effective remedy a violation of article 13. The same day, the president of the 5th section requested the French Republic to suspend the deportation of the applicant pending a decision of the ECHR (Rule 39). On May 12th 2009, the application was communicated to the agent of the French Republic with questions to be answered within 16 weeks. On December 14th 2010, the application was found admissible. On May 17th 2011, the Court held a public hearing . UNHCR submitted 2 briefs “amicus curiae” (2009, 2011) and intervened during public hearing.

On February 2nd 2012, the 5th section of the ECHR ruled that the allegation of violation of article 3 was inadmissible on the ground that on October 14th 2010 the court (CNDA) granted the applicant refugee status (art.35-3-a). The Court found a violation of articles 13 and 3 of the Convention because the applicant received an unsatisfying legal and interpreting assistance from the duty lawyer (§155) and from the on site NGO Cimade (§145). The Court added that for detained asylum seekers, the automatic classification of their cases as “fast track“, the difficultly to gather evidence, and the shorter delays to claim asylum (5 days) and to appeal their deportation orders (48h) limited severely their access to domestic remedies.

The judgment ordered the French Republic to pay €0 in damages and €4,746.25 in legal fees to the applicant. He was represented by Me Gabriele Summerfield (Perpignan).

On n/a, Ms. Fernandez was informed by a notice of December 15th 2006 that she was suspected of speeding at n/a on the road n/a in n/a on September 13th 2006 at n/a (art. R413-14 of the road code).

On n/a, she had to deposit €180 to get her non-guilty plea registered by the prosecutor (art.530 of the code of penal procedure).

On January 7th 2008, the applicant appeared in court without being able to get access to the prosecution file of evidence of her case. She was not assisted by a lawyer and wasn’t informed when the judgment will be given (art.462 of the code of penal procedure). On n/a, the judge found her guilty of n/a and condemned her to a fine of €135, to administrative cost of €22. Following the condemnation, she automatically lost 1 point out of her 12 points driving license.

On February 18th 2008, she filed an appeal to the supreme court (Cour de cassation) against the judgement. On May 3rd 2010, she was informed that on September 17th 2008 the supreme court ruled her appeal inadmissible (art.605 of the code of penal procedure) for a violation of article 568 of the code of penal.

On October 29th 2010, she filed an application to the ECHR on the ground that the lack of access to the prosecution file of evidence was a violation of article 6-1 of the Convention. She added that the lack of formal notification of the judgment of Montpellier was a violation of article 6-1 and 13, and that the requirement to file in person her appeal to the supreme court, was a violation of article 6,13 and 14 of the Convention. She stated that the prosecutor was not required to file in person his appeal.

On January 17th 2012, the 5th section of the Court ruled her application inadmissible on the surprising ground that because the administrative judge Fernandez was condemned to a fine of €135, “the applicant has not suffered significant disadvantage regarding her right to a fair trial” (art.35-3-b) of the Convention).

On October 6th 2011, the 5th section of the Court ruled in judgment Wagner v. Luxembourg (43490/08) that the allegation of violation of article 6-1 during proceedings following which the applicant lost 4 points out of his 12 points driving license, was admissible (§25).

On March 18th 1997, the Court found in judgment Foucher v. France (22209/93) that the lack of access of the accused to the prosecution file of evidence was a violation of article 6-1 and 6-3 of the Convention. In this case, Mr. Foucher was condemned to a fine of €457 for insults.

On May 22nd 2008 at 2:15pm, Mr. Joseph Guerdner was arrested when he came to report to the military police station of Brignoles. Later in the afternoon, the suspect was transferred to a military police station of Draguignan. At 10:50pm, he was found dead in a park near the military police station of Draguignan.

Military police officer Monchal claimed that he shot 4 to 6 times in the direction of the the suspect while he was running away from the station and climbing in a tree in a park. According to this officer, the suspect handcuffed and wearing a handcuff to one of his foot, jumped from a window of the station before running to the park. The window was 4.6 meters above the ground.

An investigation was opened by the military police. On December 1st 2009, the investigation chamber of the appeal court of Aix-en-Provence charged Mr. Monchal with “involuntary manslaughter” against the legal opinion of the prosecutor Guémas based on article L2338-3 of the code of military defense.

On September 16th 2010, the prosecutor Guémas told the jury that Mr. Monchal “couldn’t be condemned. On September 17th 2010, the accused was acquitted. Prosecutor Guémas didn’t appeal the judgment.

On n/a, the family of Mr. Joseph Guerdner filed an application to the ECHR arguing that the investigation on the death of Mr. Guerdner was not effective, and that prosecutor Guémas didn’t attempt to secure a conviction of Mr. Monchal in violation with article 2 and 6 of the Convention. They added that the execution of Mr. Guerdner was unlawful in violation of article 2 of the Convention. On December 14th 2011, the application was communicated to the agent of the French Republic with questions to be answered within 16 weeks. The applicants are represented by Me Regine Ciccolini (Aix en Provence).

On May 6th 2008, Greenpeace France challenged the legality of the executive order 2008-209 at the administrative supreme court (Conseil d’etat). The executive order was taken by the French prime minister after receiving secret legal advice from unknown staff of Conseil d’etat, secret report from ministry of ecology and opinion 2008-AV-0054 of French Authority of Nuclear Safety (ASN). On July 9th 2009*, the private company AREVA owned, funded and controlled by the French Republic, submitted a secret brief “amicus curiae“*. On July 10th 2009, an hearing was organized on the case (no 315980) during when the “public adviser” submitted a secret brief*. After the hearing,  the ministry of ecology submitted a secret brief*.

On July 28th 2009, Greenpeace France was informed that a groundless decision was taken not to rule on the case until further notice. On March 22nd 2010*, a secret hearing was organized where witnesses didn’t testify under oath (art.R623-5 of the code of administrative justice). On May 21st 2010*, a hearing was organized and a secret brief* was submitted by the “public adviser“. On June 30th 2010, unnamed administrative judges released a decision dismissing the legal challenge of Greenpeace.

On September 22nd 2010, Greenpeace France filed an application with the ECHR (see below) arguing that the groundless decision not to rule, the testifying of witnesses who didn’t take the oath, the secrecy of the hearing of March 22nd 2010, the lacking of the transcript of the secret hearing, the refusal to communicate to Greenpeace France the 2 secret briefs of the “public adviser” were a violation of article 6-1 of the Convention. On December 13th 2011, Judge Villiger (Liechtenstein), Judge Jungwiert (Czech Republic) and Judge Yudkivska (Ukraine) ruled the application inadmissible as manifestly ill-founded (art.35-3-a) on the ground that Greenpeace France was acting “to protect the rights of citizens to live in an healthy environment” rather than its own rights. Greenpeace France was represented by Me Alexandre Faro (Paris).

*the date of the hearings and the existence of the secret briefs was not revealed in the Conseil d’Etat decision of the June 30th 2010 but only in the ECHR application of Greenpeace France.

On December 17th 2008, the Portuguese-language newspaper Contacto owned by the media conglomerate Saint-Paul Luxembourg, published an article on children custody rights in Luxembourg. In the article, the citizens interviewed, named 2 teenagers in cases handled by Mr. Kapitene of the office of the general prosecutor (SCAS).

On January 5th 2009, Mr. Kapitene filed a criminal complain. On January 30th 2009, an investigative judge opened at the request of the prosecutor of Luxembourg, an investigation for “slander” (art.443 of the penal code) and for revealing the name of the 2 teenagers (art.38 Law August 10th 1992).

On March 30th 2009, the investigative judge Scheer ordered the police to search* the Contacto office (art. 65 of the code of criminal procedure) “to identify the offender” described as the “journalist of Contacto who wrote the article“. On May 7th 2009, 3 police officers searched the office of Contacto and seized documents and computer files on CD and USB flash drive. According to the European Federation of Journalists (EFJ), the police officers didn’t inform the Council of Press in violation of the directive of March 28th 2006 on article 7-a) of the Code of ethics.

On May 20th 2009, the tribunal rejected secretly the motion of Saint-Paul Luxembourg to suppress the search*. On October 27th 2009, the appeal court confirmed the secret ruling*.

On April 26th 2010, Saint-Paul Luxembourg filed an application with the ECHR on the ground that the police search of Contacto office was a violation of articles 8 and 10 of the Convention. On December 5th 2011, the application was communicated to the agent of Grand Duchy of Luxembourg with questions to be answered within 16 weeks. The applicant is represented by Me Patrick Kinsch (Luxembourg).

* : On January 10th 2012, Ms. Catherine Fabeck of the office of the prosecutor general (CREDOC) informed us that the order of the investigative judge and the rulings of the tribunal and appeal court were all “secret” and couldn’t be communicated to ECHR News.

On January 23rd 2009, Ms. Kanagaratnam and her 3 minor children M. , G., A. claimed asylum at the passport control of the airport of Brussels (art.50ter law December 15th 1980). They were refused entry and ordered to be deported (art. 52/3 §2) because they claimed asylum without possessing a valid passport and visa (art. 2 §2). An order for their detention in the immigration center “127 bis” (Steenokkerzeel) for 2 months was taken (art. 74/5 §1 2o) because they claimed asylum without possessing a valid passport and visa.

The immigration detention center “127 bis” (Steenokkerzeel) was visited by the CPT (1997 visit report, 2005 visit report), by the Commissioner for Human Rights (2008 visit report CommDH(2009)14) and by the LIBE commission of the European Parliament (2007 visit report see below).

On March 17th 2009, the court CCE (Conseil de contentieux des étrangers) rejected their appeal of the denial of their asylum applications by the Commissioner general for refugees and stateless persons (CGRA) on February 23rd 2009. On March 20th 2009, the police attempted to deport them to the Democratic Republic of Congo.

On March 20th 2009, Ms. Kanagaratnam and her 3 children filed an application with the ECHR on the ground that their deportation to Sri Lanka via DRC will be a violation of article 3 of the Convention. They added that their detention was a violation of article 3 and 5-1-f) of the Convention. The Court requested the suspension of the deportation order (Rules art.39). On the same day, an order of detention of the family for 2 months was taken on the basis that they refused to board the plane to DRC.

On March 23rd 2009, the family filed a 2nd asylum claim. Immediately, another order of detention was taken for 2 months (art. 74/5 §1 2o). During their whole detention, the family made 2 requests to be released (art. 71§2) which were both denied by the appeal court of Brussels. The 2 appeals to the supreme court were also rejected. On May 4th 2009, the family was released by administrative decision. On September 2nd 2009, the family was granted refugee status by administrative decision of the Commissioner general for refugees and stateless persons (CGRA).

On November 25th 2009, the application was communicated to the agent of the Kingdom of Belgium with questions to be answered within 16 weeks. On December 13th 2011, the 2nd section of the Court found a violation of articles 3 and 5-1 for the 3 children on the ground that the immigration center “127 bis” was not tailored for their detention (Judgment Muskhadzhiyeva v. Belgium (41442/07) §63 and §75). It also found that the detention of Ms. Kanagaratnam from March 23rd 2009 to May 4th 2009 was “arbitrary”  in violation of article 5-1 because of the length of her detention in a facility not tailored for families. The Court awarded the applicants €46,650 in moral damages and €4,000 in legal fees. The applicants were represented by Me Zouhaier Chihaoui (Brussels).

Mr. Tristan Wibault of the NGO Belgium Committee to Help Refugees (Comité Belge d’Aide aux Réfugiés) found the judgment to be a positive development of the case-law regarding the detention of asylum seekers.

On March 17th 2011, Mr. Joseph Etute detained at the prison of Sandweiler (CPL), received a letter of the Court dated March 9th 2011. The letter was already opened. The applicants complained to the prison officials who apologized. They explained to the Ombudsman of Luxembourg, ECHR ex-Judge Fischbach (1998-2003) that it was their policy to open all large envelope and parcel received by detainees.

Under executive order of March 29th 1989 of unelected Grand Duke Jean, the right to correspondence of detainees is severely restricted. Under article 219, convicted detainees require an authorization of the director of the prison to write to anyone other than their family, lawyers, Luxembourg officials (judges, prosecutors, public servants, congressmen and the head of state) and consulate officers. The content of the letters can only be about family and private matters and cannot contain any “allegation” or “accusation” (art. 221).

The prison officials can routinely open all the letters and read them (art.223) except for the letters to lawyers and Luxembourg officials. The director of the prison can censor and seized any letter which he considers in violation of article 221 (art.224 and 225). The investigating judge can read all letters of detained suspect (art.218) and can order suspension of his right to correspondence except to his lawyer (art.226). Detainees in disciplinarian cells have also their right to correspondence automatically suspended except to their lawyers, Luxembourg officials and consulate officers (art.199)

On April 2nd 2011, Mr. Etute filed an application with the ECHR arguing that the opening by prison officials of his correspondence with the Court was a violation of article 8 of the Convention. On May 6th 2011, the applicant received a letter of the Court dated April 11th 2011. The letter was already opened. On June 27th 2011, he received another letter of the Court already open, dated June 17th 2011.

On December 5th 2011, the Court communicated the application to the agent of Grand Duchy of Luxembourg with questions to be answered within 16 weeks. On December 22th 2011, the minister of Justice Bilgen announced a bill on the rights of detainees. But article 31 on the right of correspondence still doesn’t authorize detainees to have a private correspondence with the European Court of Human Rights (see below).

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.

In 1988, the association Rhino was formed to protect the housing rights of its members who were occupying 3 empty buildings in Geneva. Due to the shortage of affordable housing, the canton of Geneva has an administrative practice to evict unauthorized occupants of empty buildings only if the owners have a building or renovating permit. From 1992 to 2002, the owners entered into negotiation with the association Rhino and its members but failed to reach an agreement on the amount of the rent or the sale price of the building.

On April 4th 2005, the owners filed a request to dissolve the association Rhino at the tribunal of Geneva. On February 9th 2006, the tribunal ordered the dissolution under article 78 of the civil code on the ground that the objective of the association was unlawful. On December 15th 2006, the appeal court of Geneva confirmed the dissolution of Rhino and the seizure of its assets. On May 10th 2007, the federal tribunal rejected the appeal of Rhino (5C.36/2007 and 5P.34/2007). On June 26th 2007, the tribunal of Geneva froze the bank accounts of Rhino and requested the lawyers of Rhino to reimburse their fees to the canton of Geneva under article 57 of the civil code. On July 23rd 2007, the police evicted the occupants of Rhino.

On November 6th 2007, the members of Rhino and Rhino filed an application with the ECHR arguing that the dissolution of the association Rhino was  a violation of article 11 of the Convention. On November 24th 2009, the Court communicated the application to the agent of the Swiss confederation which replied with his observations received on March 30th 2010. On May 12th 2010 the applicants submitted their observations.

On October 11th 2011, the 2nd section of the Court found a violation of article 11 of the Convention on the ground that the dissolution was disproportionate and not “necessary in a democratic society“. It awarded the applicants €65,651 for material damages and €21,949 for legal fees. The applicants were represented by Me Pierre Bayenet and Me Nils de Dardel both lawyers in Geneva. Me Pierre Bayenet is “satisfied” with the judgment who confirmed the right of citizens irrespective of their legal situation, “to organize in association to defend their rights“.

Mayotte (Maore) is one of the 4 main islands of the Comoros. Mayotte is still administrated by France despite several UN General Assembly resolutions calling since 1976 for “France withdrawal” (A/RES/31/4, A/RES/37/65, A/RES/49/18). On January 18th 1995, the French police started requiring all citizens of the other islands of the Comoros to obtain a visa to visit Mayotte. The same year, a clandestine facility is opened in Pamandzi to detain migrants awaiting deportation.

On January 19th 2004, article 1 of the executive order DOMA0300056Alegalized” the clandestine facility as the immigration detention center of Pamandzi (Centre de Retention Administratif). Today, the conditions of detention in this center are still by exception not regulated by the French code of migration and asylum.

On April 14th 2008, the French National Commission of the Ethic of Security (CNDS) released a report on his visit of the center (2007-135, 2007-136). It found 3 large immigration cells, 4 showers, 6 restrooms and a police custody cell. The chief of the center admitted to detain up to 220 migrants including children despite an “unofficial maximum capacity” of 60. Migrants were locked into cells and forced to sit, eat and sleep on the floor due to the absence of furniture. There was no access to health care and to legal assistance. On November 20th 2008, the Commissioner for Human Rights Hammarbergurged that the living conditions of foreigners held in Mayotte be improved immediately” (CommDH(2008)34 VII-11).

On December 17th 2008, Amnesty International stated in a press release that the “conditions in the center amount to inhuman and degrading treatment. It published a video of the center taken on October 22nd 2008 (see video below). At that date, 41 children and 161 adults were detained in the center.

On July 26th 2010, the French OPCAT NPM (Controleur des lieux de privation de liberte) published his report on its visit of May 2009. It described the 3 immigration cells : one of 60m2 for men , a second of 77m2 for women and children (including babies) and a third of 35m2 as a waiting cell for everyone. The cells were overcrowded, unfurnished, dirty and fetid. The showers had no hot water. The lunch and dinner consisted of a plate of rice with meat. There was no yard for outdoor exercise and access to public phone was restricted. The detention in this center could last up to 5 days. The French NPM concluded that the conditions of detention were “appalling“. On April 2011, the documentary “Controversy islands” of Australian TV SBS highlighted the situation of migrants detained in Mayotte. In November 2011, Mr. Delage, a police union leader found the conditions in the center “inhumane.

The conditions in the center are in violation with CPT standards (CPT/Inf/E (2002) 1) that states that the immigration detention center should “provide accommodation which is adequately-furnished, clean and in a good state of repair, and which offers sufficient living space for the numbers involved“. (..) “As regards regime activities, they should include outdoor exercise(..)” (p54).

On April 5th 2011, the 1st section of the ECHR ruled in judgment Rahimi v. Greece (8687/08) that the conditions of detention in the immigration center of Pagani were “so serious they violated the very meaning of human dignity“. The 7 Judges  added that these conditions “irrespective of the length of the detention” of the applicant, amounted to “degrading treatment in breach of article 3“. The conditions in the center of Pamandzi, similar to the ones of Pagani (see video below) amount also to a violation of article 3 of the Convention.

Since April 2009, the publicly funded Christian organization CIMADE is granted permanent access to the center of Pamandzi to provide legal assistance. More than 60,000 migrants have been detained since then. But according to Ms. Ballestrero (CIMADE Mayotte chapter), her organization didn’t advise any detained migrants to obtain compensation for the violation of article 3 of the Convention.

In France, there is no requirement for uniformed and plainclothes police officers to display their name or their administrative number or to show their police card upon request. Furthermore, the name and number of the police officer are not on the side of the card shown to the public [pic]. Some police officers are also using masks, hoods and scarfs to hide their identity, which is an infraction punished by a fine of up to €150 and a mandatory “citizenship class(article 1 of Law 2010-1192).

On October 14th 2011, the tribunal of Paris ordered 7 French internet service providers to censor the website Copwatch Nord-Paris IDF on the ground that it was collecting and publishing photos of police officers. On November 4th 2011, the supreme court (Cour de cassation) ruled that TF1 journalists should have obtained from police officers, written consents to revealing their name in a documentary (case  10-24761), even though the journalists had already their written consents to filming.

Citizens filming police officers committing violent acts are automatically committing the infraction of complicity (art.222-33-3 of the penal code) which is punished by up to 20 years in prison in case of torture. If they publish the video, it is an offense that carry a maximum penalty of 5 years in jail and a €75,000 fine (art.222-33-3 of the penal code).

The practice for police officers to hide their identity and the French legal framework prohibit effectively today the identification of police officers in case of an allegation of violation of articles 2 or 3 of the Convention. It is in violation of article 45 of the European Code of Police Ethics (Rec(2001)10) that states : “Police personnel shall during intervention normally be in a position to give evidence of their (..) professional identity.”

CPT standards stated that suspects should be informed of “the identity (name and/or number)” of the police officers present in the interrogation room (I-37 p7). Amnesty International raised the difficulty to identify French police officers following allegations of violations of articles 2 or 3 of the Convention (Report EUR 21/006/2005 The effective impunity of law enforcement officers..2.9). It recommended that France “ensure that police officers are identifiable by members of the public at all times via individual identity number badges and that police officers be obliged to state their identity number to members of the public on demand.”(EUR 21/005/2008 2.3).

On November 30th 2011, the French Ombudsman published his opinion on the case 2009-112. On November 18th 2009, Mr. A a political science student alleged to have been pepper sprayed twice, racially insulted and threatened with assault by 2 police officers in riot gear. The police investigation was closed with no suspect interrogated on the ground that they couldn’t “identify” the police officers involved. The Ombudsman recommends in his opinion that police officers in riot gear should be identifiable.

On October 11th 2011, the 4th section of the ECHR stated that masked police officers “should be required to visibly display some anonymous means of identification – for example a number or letter” (Hristovi v. Bulgaria (42697/05) §92). It added the practice of police officers to mask their face confers them a “virtual impunity” making any investigation not “effective” (§93).

Therefore, the practice of French police officers to be non identifiable could result in violations of articles 2 or 3 of the Convention.

On August 27th 2005, Mr. Douet was driving home at night. His car was stopped by military police officers. 2 military police officers beat him up and arrested him. During his police custody, he was examined by a doctor (art.63-3 of the code of penal procedure) who found him “unfit for police custody“, due to his multiple wounds. Informed of the medical certificate, the prosecutor of the tribunal of Clermont-Ferrand ordered his release from police custody but didn’t open any investigation.

On September 5th 2005, Mr Douet pressed criminal charges for “aggravated assault” by filing a complain to the prosecutor.  The prosecutor decided to close the investigation without charging any military police officers. On November 22th 2005, he pressed charges again by filing a complain to an investigative judge. On December 12th 2007, the investigative judge charged 2 military police officers.

On July 3rd 2008, the 2 military police officers were acquitted by the tribunal of Clermont-Ferrand. The prosecutor didn’t appeal the acquittal. On April 1st 2009, the appeal court of Riom rejected the civil claim for damages of Mr. Douet On July 8th 2009, the supreme court refused to hear his appeal.

On March 10th 2010, Mr. Douet filed an application to the ECHR on the ground that his beat up by military police officers was a violation of article 3 of the Convention. He added that the fact that he couldn’t appeal the acquittal of the 2 military police officers (art.497 of the code of penal procedure) was a violation of article 13. On September 29th 2011, the application was communicated to the agent of the French Republic with questions to be answered within 16 weeks. The applicant is represented by Me Jean-François Canis (Clermont-Ferrand) who didn’t answer our email for comments.

On January 7th 2004, the minister of state Patrick Leclercq committed upon accession to the Council of Europe, to submit to the Monaco National Council a bill on police custody (Appendix 5, 1-A)in order to ensure the compatibility of Monaco legislation with the ECHR and its Protocols”. On October 5th 2004, Monaco became a member of the Council of Europe. On November 30th 2005, Monaco ratified the European Convention of Human Rights which entered into force the same day.

On December 26th 2007, the law 1.343 introduced articles 60-1 to 60-12 on police custody in the code of penal procedure. Until then, police custody was not regulated by any law. Under these articles, the detention of a suspect in police custody can only be ordered by a police officer (art.60-2) and is supervised by the prosecutor general (art.60-1) who can release the suspect (art.60-3). The suspect should be brought before the prosecutor general within 24 hours of his arrest (art.399) who can order orally his detention for up to 6 days pending trial (up to 4 days not including weekends and labor holidays).

On November 24th 2011, bill 894 on police custody was submitted to the National Council. The bill 894 introduced a new requirement for the prosecutor general to notify promptly the “freedom judge” of the detention of a suspect in police custody (art.2 of bill 894). But the bill 894 don’t allow the “freedom judge” to get access to the custody record, to control the conditions of detention, to rule on the lawfulness of the police custody and to release the suspect. Worse, the prosecutor general can still order the arrest of a suspect (art.157, art.261) and detain him without any of the legal safeguards of police custody (art.159). The lack of effective control of police and prosecutor general custody by a judge is a violation of article 5-1 of the Convention (judgment Medvedyev v. France (3394/03) §61).

Bill 894 doesn’t introduce any requirement to bring the suspect promptly before a judge to rule on the lawfulness of the police custody and if needed to order his detention pending trial, in violation of article 5-3 of the Convention. The prosecutor general shouldn’t perform these functions because he will prosecute the suspect (judgment Huber v. Switzerland (12794/87) §42).

Article 6 of the bill 894 confirmed the possibility to extend police custody up to 4 days on request of the prosecutor general (art.60-4). Moreover, Bill 894 doesn’t forbid in the same investigation several police and prosecutor general custody of a suspect.

In its visit of Monaco in March 2006, the Committee for the Prevention of Torture (CPT) met suspect unlawfully detained (CPT/Inf (2007)20 §30).

But Bill 894 failed to introduce a “habeas corpus” for suspect in custody in violation of article 5-4 of the Convention (judgment Zervudacki v. France (73947/01) §77). It also didn’t create “an enforceable right to compensation” for the victim of an illegal detention in police or prosecutor general custody. This is a violation of article 5-5 of the Convention.

Therefore, Monaco seems to fail to honor its commitment made in 2004 to ensure the compatibility of his legislation on police custody with the Convention. Monaco National Council will vote on Bill 894 in Spring 2012 after discussion in the law committee.

In autumn 1977, Ms. Agnes Roux disappeared. On August 13th 1983, Mr. Maurice Agnelet was suspected of her “murder” by an investigative judge, following the criminal complain of the mother of Ms. Agnes Roux. On April 23th 1986, the investigation chamber of the appeal court of Aix en Provence, confirmed the decision of the investigative judge to close the investigation without charging any suspect. On February 1st 1988, the supreme court (Cour de cassation) rejected the appeal of the mother of Ms. Agnes Roux (case 86-92512).

On December 20th 2000, Mr. Maurice Agnelet was again suspected of her “murder” by another investigative judge. On October 26th 2005, he was charged with “murder” by the investigation chamber. On December 20th 2006, he was acquitted by the criminal court of Nice. But the prosecutor appealed the acquittal (art.380-2 of the code of penal procedure). On October 11th 2007, he was found guilty of “murder” by the criminal court of Aix en Provence and sentenced to 20 years in prison. On October 15th 2008, the supreme court rejected his appeal (case 07-87723).

On December 11th 2008, Mr. Maurice Agnelet filed an application to the ECHR (see below) on the ground that the 20 years investigation and the prosecution after the expiry of the statute of limitation were both in violation of articles 6-1, 6-2 and 13 that the formal charge of October 26th 2005 didn’t contain in detail the nature and cause of the accusation of “murder” (where?, when?, how?) in violation of article 6-3-a) and the 2 questions of the head judge to the jury on a new charge of “complicity to commit murder” on the last day of the trial was another violation of article 6-3-a).

He added that the ruling of the 3 judges of the criminal court on October 9th 2007 which stated that he “lied“, was a violation of article 6-1,  that the head judge refused to record the closing argument of the prosecutor on October 9th 2007 in violation of article 6-1, that the head judge had printed a decision where the jury found him guilty before its deliberation in violation of article 6-1 and that the criminal court judgment was groundless in regards to his guilt and to the length of his sentence in violation of article 6-1. On December 13th 2010 and August 17th 2011, the applicant submitted two additional briefs (brief 1, brief 2). The applicant is represented by Me Francois Saint-Pierre (Lyon/Paris).

On September 27th 2011, the 5th section of the Court ruled that the application was only admissible for the lack of ground of the criminal judgment, and communicated the application to the agent of French Republic with questions to be answered within 16 weeks. Surprisingly, the 5th section found that the formal charge of October 26th 2005 was not in violation of article 6-3-a) on the ground that it was a “93 pages brief” that detailed the “attitude of the defendant with the family” of Ms. Agnes Roux.

On April 24th 2001, Mr. Francois Mourmand is arrested and detained pending the Outreau investigation, on the request of the investigative judge Burgaud. In July 2001, he filed a complain for false allegation. On June 9th 2002, he was found dead in his cell of the jail of Douai. The Outreau investigation resulted in a unprecedented miscarriage of justice. Finally, criminal courts acquitted 13 defendants in 2004 and 2005.

On June 11th 2002, an investigation on the cause of the death was opened by an investigative judge. According to the toxicology tests, his death was caused by psychiatric medications. Medical experts found that psychiatric medications were prescribed in unusually high levels and no medical record was found to justify these levels. On January 9th 2007, the sister of the deceased, Ms. Lydia Mourmand filed a complain for “involuntary manslaughter” to the investigative judge. On March 4th 2011, the chamber of investigation of the appeal court of Douai confirmed the decision of the investigative judge to close the case without charging any suspect.

On January 23rd 2007, Ms. Lydia Mourmand and her father filed an application to the ECHR on the ground that the life of Mr. Francois Mourmand in jail was not protected and the investigation on the cause of his death was too slow, both violation of article 2 of the Convention. They added the conditions of his detention and the lack of proper healthcare in jail were a violation of article 3, his detention pending investigation for more than 13 months a violation of article 5, the lack of investigation following his complain a violation of article 6-1, the discrimination for belonging to the traveller community a violation of article 14 and lack of remedy on these violations a violation of article 13. On November 9th 2009, the application was communicated to the agent of the French Republic.

On August 30th 2011, the 5th section of the Court strike out the application on the ground that the French Republic offered a settlement of €20,000 to the applicants who accepted it. The French Republic didn’t recognize any violation of the Convention. On November 3rd 2011, the applicant deplored to have sign the settlement because she is “semi-illiterate“.

On January 18th 2006, the applicant was interviewed  by congressmen during the congressional inquiry into the Outreau investigation.

On March 10th 1999, Mr Portmann was arrested in a house in Urnäsch as a suspect in an investigation on a bank robbery. Unnamed Swiss police officers handcuffed his hands in his back, shackled his feet, and placed a hood on his entire head.

The suspect was transported, handcuffed, shackled and hooded to the police station of Herisau where he was interrogated in the same condition by an investigative judge. He exercised his right to remain silent during the interrogation and the investigative judge ordered his detention. Then masked police officers removed his hood and requested him to sign a transcript of the interrogation. Upon his refusal, they placed the hood again on his head. He was detained in a basement cell before being transported to the police station of Trugen. There police officers removed his handcuff, shackle and hood.

On April 4th 2006, the applicant press charges by filing a complain to an investigative judge. On May 3rd 2006, the investigative judge closed the investigation on the ground that hooding was “standard police protocol” for suspects considered “dangerous” by police. No witness were interviewed in the investigation. On July 24th 2006, the prosecutor rejected the appeal of the applicant on the ground that hooding was necessary to keep “the anonymity of the police officers“. He refused to examine the allegation of violation of article 3 of the Convention and to award legal aid to the applicant.

On September 8th 2006, the federal tribunal (case 1P.469/2006) rejected his appeal on the ground that hooding was not “disproportionate” and denied him legal aid.

On September 19th 2006, Mr. Portmann filed pro se an application to the ECHR on the ground that the condition of his arrest and his detention were a violation of article 3. He added that lack of access to a tribunal and the lack of effective remedy were both a violation of articles 6-1 and 13. On November 3rd 2009, the application was communicated to the agent of the Swiss government.

On October 11th 2011, Judge Jočienė (Lithuania), Judge Björgvinsson (Iceland), Judge Malinverni (Switzerland), Judge Sajó (Hungary), Judge Karakaş (Turkey) and Judge Tulkens (Belgium) of the Court found no violation of article 3 on the surprising grounds that “the applicant could breathe through the hood“, “that he didn’t try to remove it” and that a “police officer was watching him almost at all time“.

In his dissenting opinion, Judge Pinto de Albuquerque (Portugal) found a violation of article 3 of the Convention based on the case-law of human rights courts and bodies (ECHR, CIDH, CAT, CPT, CCPR), on findings of the ICRC, ICRT and U.N special rapporteur on torture and on the facts of the case. He concluded that the hooding of the applicant was “unlawful“, “disproportionate”, “useless“, “objectively degrading” and an “inhumane and degrading treatment“.

In 2000, it was revealed by a whistle-blower that disabled women were unlawfully (art.16-3 of the civil code) sterilized by force from 1995 to 1998 in the city of Sens. On September 11th 2000, an advocacy group ADHY (Association de Défense des Handicapés de l’Yonne) pressed criminal charges by filing a complain to an investigative judge of the tribunal of Sens for “aggravated mutilation” (art.222-10 of the penal code) and “obstruction of justice” (art.434-1 of the penal code). On October 18th 2000, the prosecutor of the Republic also filed a complain to the investigative judge.

On October 20th 2000, the investigative judge refused to allow the complain of the ADHY. On July 2th 2001, the investigation chamber of the appeal court of Paris confirmed the decision. On October 9th 2002 the supreme court (Cour de cassation) rejected the appeal of the ADHY (case 01-88831). Some disabled citizens who were sterilized by force joined the proceedings.

On April 3rd 2006, the investigative judge Mickaël Ghir closed the criminal investigation with no charge brought against the suspects. On March 12th 2007, the investigation chamber of the appeal court of Paris confirmed the decision on the ground that “it is extremely difficult for disabled citizens to parent“.  On June 10th 2008, the supreme court found the appeal of the plaintiffs inadmissible (case 07-86623) on the ground that a  joint-appeal was not made by the prosecutor (art.575 of the code of penal procedure).

On December 10th 2008, 5 disabled women filed an application to the ECHR on the ground that the lack of legal assistance provided to them during the investigation and the inadmissibility of their appeal to the supreme court were both a violation of article 6-1. They added that their forced sterilizations were a violation of articles 3, 8, 12 in conjunction with article 14. On February 22th 2011, the application was communicated to the agent of the French government with questions to be answered within 16 weeks. The applicant is represented by Me Didier Seban (Paris).

On August 16th 2011, the European group of national Human Rights institutions submitted to the Court a brief amicus curiae .

On January 1st 2001, Mr. A. was wounded in an exchange of fire in the French island of la Reunion. On March 17th 2006, Mr. David Fraumens was considered a suspect in the investigation. On March 27th 2007, the applicant was charged with “attempted murder” (art.121-4 and 221-1 of the penal code). On December 7th 2007, the criminal court of Saint-Denis de la Reunion acquitted the applicant. The prosecutor general appealed the judgment of acquittal (art.380-2 of the code of penal procedure).

On October 3rd 2008, the criminal court of Saint-Denis de la Reunion found the applicant guilty and sentenced him to 30 years in prison. On December 9th 2009, the French supreme court (Cour de cassation) rejected his appeal (case 08-87172).

On May 15th 2009, Mr. David Fraumens filed an application to the ECHR (see below) on the ground that the criminal court judgment was groundless in regard to his guilt and to the length of his sentence, in violation of article 6-1 of the Convention. On August 25th 2011, the application was communicated to the agent of the French government with questions to be answered within 16 weeks. The applicant is represented by Me Luc Misson (Liege).

In 2010, the French preventive mechanism under OPCAT (general controller of the detention facilities) published reports on its visits of the detention facilities in the airports of Bordeaux, Paris-Charles de Gaulle and Strasbourg in 2009. They revealed an administrative practice of the French border police to temporarily detain some passengers arriving on flights from outside the Schengen area, prior to decisions on their entry into France.

 The passengers are arrested at the passport control in the terminals but also at preliminary passport checks in the gangways (CommDH(2006)2 §193). These preliminary passport checks seems unlawful as there are not “prescribed by law”.

The passengers are then detained incommunicado in cramped police cells inside the terminals (CPT/Inf (2001)100 §50, CPT/Inf (2003) 40 §22, CPT/Inf (2007)44 §27) or locked in the terminals (CommDH(2006)2 §194, HRW Lost in Transit p16). They are not informed of the reasons of their arrest and of their right to have their consulate notified of their detention (art.36 Vienna Convention on Consular Relations). They are not allowed the assistance of a lawyer (CPT/Inf (2003) 40 §39). The border police don’t record the reasons and the time of these detentions and the ethnicity of the passengers detained. It was alleged that some passengers were locked in a terminal for up to 10 days (CPT/Inf (2003) 40 §40).

On June 25th 1996, the ECHR ruled in judgment Amuur v. France (19776/92) that the detention for 20 days of four asylum seekers in the terminal of the airport Paris-Orly, was not “prescribed by law” (§53) and a violation of article 5-1 of the Convention. On September 25th 1998, the Committee of Ministers found in its resolution DH (98) 307 that the law 92-625 of July 6th 1992 as a general measure, will prevent further violation of article 5-1. But this law  only allows the detention of the arriving passengers once they are notified of a refusal of entry into France (articles L-221-1 of the code of migration and asylum).

Therefore, the detention of arriving passengers prior to a decision on entry into France, is not “prescribed by any law” (NGO ANAFE Note June 2010 p3) and a violation of article 5-1 of the Convention. The absence of information on the reason of the detention is a violation of article 5-2. The lack of detention record, of lawyer assistance and access to a consular officer forbid the passenger to challenge the lawfulness of his detention in violation of article 5-4 and to enforce his right to compensation in violation of article 5-5 of the Convention.

In 2004, Ms. A.Y arrived from Guinea to claim asylum. She alleged to have been detained, tortured and raped by military officers in 2003 due to her political activity in U.F.R party. In May 2005, she moved in with her partner a EU citizen from Netherlands. In 2006, she suffered an miscarriage which ended her pregnancy. On June 4th 2009, Ms. A.Y and her partner registered a civil partnership (PACS)with the intent to get married at a later date.

On May 2nd 2008, the national court of asylum (CNDA) rejected her appeal on the decision of the asylum officers of OFPRA to deny her asylum. On May 5th 2009, the prefect in Annecy ordered her deportation to Guinea due to her “unlawful” stay. On May 15th 2009, Ms. A.Y filed an application to the ECHR on the ground that she will be submitted to torture (art.3), separated from her partner (art.8) and not able to get married (art.12) if deported. The French government suspended the deportation order following request from the E.C.H.R (art.39).

The French government never transposed the articles 2-2-b) and 3-2-b) of the directive 2004/38/EC in national law (code of migration and asylum). These articles allow registered partner and partner in durable relation with a EU citizen to obtain a 5 years residence card upon registration. The deadline of the transposition of the directive 2004/38/EC was April 30th 2006. On July 25th 2008, the European Court of Justice ruled in case Metock (C-127/08) that any EU citizen’s family member have legal status under the directive 2004/38/EC irrespective of the lawfulness of his entry or stay before becoming a family member (99). The Court added an unlawful stay before becoming a family member can’t be a ground for deportation of the family member (97).

In its observation to the Court, the French government didn’t allege that the personal conduct of Ms. A.Y represents any “threat affecting one of the fundamental interests of society” . But it stated if the applicant is deported to Guinea, the couple could live there.

In its decision of October 11st 2011, the Court found that the deportation order to Guinea was in “accordance with the law“. On the contrary, the deportation order on the ground of “unlawful stay” (art. L511-1 of the code of migration and asylum) was taken in violation of articles 3-2-b) and 27 of the directive 2004/38/EC and the ECJ judgment Metock (C-127/08). The Court added that from May 2005 to April 2009, the couple couldn’t have a “legitimate expectation that right of residence would be granted to the applicant“. On the opposite, the applicant should have a legitimate expectation that the French government will respect the directive 2004/38/EC and the case-law of the European Court of Justice, and acknowledge her right of residence.

Finally, the Court ruled the application inadmissible as manifestly ill-founded on the surprising ground that if Ms. A.Y is deported to Guinea her EU citizen partner could live with her. But there is no provision under the Guinean immigration executive order 94/059 to grant an immigrant visa and a residence card to the partner or spouse of a citizen of Guinea. On the opposite, Ms. A.Y could live with her partner in any of the 27 countries of the European Union under articles 2-2-b), 3-2-b) and 7 of the directive 2004/38/EC.

This decision A.Y v. France (25579/09) raises serious concerns about the respect of the European Union Law and the case law of the European Court of Justice, by the European Court of Human Rights. The applicant was represented by Me Michele Blanc (Annecy).

In 1987, Mr. Djamel Beghal arrived in France to pursue studies at the age of 22 years old. In 1993, he became a French citizen. On October 1st 2001, he was extradited from U.A.E to France. On March 15th 2005, the tribunal of Paris condemned him to 10 years in jail for “preparing a terrorist attack” on the U.S embassy in Paris. On December 14th 2005, the appeal court of Paris confirmed the sentence, even there was unsufficient evidence according to U.S diplomatic cable 05PARIS3118 revealed by Wikileaks.

On December 23rd 2006, the French government stripped the applicant from his French citizenship and on September 19th 2007, took an order to deport him to his country of birth Algeria.

On May 26th 2009, the emergency request of the applicant to suspend the deportation order to Algeria was rejected by the administrative tribunal of Paris. On May 27th 2009, Mr. Beghal filed an application to the ECHR on the ground that he will be submitted to torture (art.3) and separated from his French wife and 4 childrens (art.8) if deported. On May 28th 2009, the ECHR requested the French government to suspend the order of deportation awaiting its decision on the application.

On May 30th 2009, the French government refused to comply with the request of the ECHR and attempted to deport the applicant at the airport Paris-Orly. French Police officers only stopped their attempt of deportation after being served with an emergency order from the administrative tribunal of Paris.

On May 22th 2010, the applicant was arrested and became a suspect in a police investigation. Surprisingly, on September 6th 2011, the ECHR found the application inadmissible on the ground that the applicant “couldn’t” be deported during investigation and decided to cancel its request to suspend the deportation order.

But the deportation order has not been canceled or suspended by the French government as there is no provision in the French law that allows to cancel or suspend the deportation order of a suspect in a police investigation. The applicant was represented by Me Bérenger Tourné (Paris).

In France in 2011 (5th republic), demonstrations are still regulated by the executive order of October 23rd 1935 of the president of council Pierre Laval (3rd republic), who was executed for “treason” on October 15th 1945 by a firing squad in the notorious prison of Fresnes.

Articles 1 and 2 of the the executive order require organizers of a demonstration to notify the prefect or the mayor of the reason, date, location and itinerary of the demonstration, 3 to 15 days before it should take place. “Traditional” demonstrations are exempted from the requirement. Article 3 of the the executive order allows head of local police, prefect and mayor to “forbid” the demonstration if it may disrupt “public order“. The executive order doesn’t define a demonstration or the minimum number of people required for a demonstration.

Participating in a “forbidden” or a “non notified” demonstration is not an offense under the French penal code. But a prefect, a mayor or any police officer can decide to disperse any demonstration that he thinks may disrupt “public order” (art. 431-3 of the penal code). Once the legal warnings have been made to the demonstrators by bullhorn or by firing a “red rocket” (art. R431-1 of the penal code), it is an offense to continue participating in that demonstration. It carries a penalty of 1 year in jail and a fine of €15,000 (art.431-4 of the penal code).

On January 26th 2011, a demonstration was organized to protest against a meeting at the Automobile Club of Paris in the 8th district of Paris. No dispersion order was taken. On the opposite, 70 peaceful demonstrators were kettled by military riot police (gendarmerie mobile). They were then arrested, searched, detained in a police bus and transported to a police station in the 11th district of Paris before being released without charge. According to the police department of Paris, the peaceful demonstrators were arrested to “verify their identity.” But this arrest is only authorized under art.78-3 of the code of penal procedure if the citizen refuses to disclose his identity upon request. According to witnesses and videos of the events, the demonstrators were not even requested for their identity before being arrested. Once arrested, they were not advised of their rights to a phone call and to have the prosecutor informed of their detention. Upon release, they didn’t receive the mandatory police report stating the reasons of their detention. (art.78-3 of the code of penal procedure).

On May 10th 2011, a gathering was organized in the Luxembourg gardens in the 5th district of Paris to celebrate the executive order of April 27th 1848 (2nd republic) making slavery illegal in French colonies. No dispersion order was taken. But 8 peaceful citizens were kettled by plainclothes police officers. Then they were arrested, searched, detained in a police bus and transported to a police station before being released without charge. Once again, the citizens were not requested for their identity before being arrested and upon release they also didn’t receive the mandatory police report stating the reasons of their detention. On May 26th 2011, a demonstration was organized in place de la Rotonde in the 10th district of Paris to protest against the G-8 meeting in Deauville. No dispersion order was taken. But the peaceful demonstrators were kettled by riot police (CRS) and plainclothes police officers. 95 peaceful demonstrators were then arrested, searched, detained in a police bus (video 2, video 3, video 4) and transported to the police stations of 5th, 11th and 18th district before being released without charge. They were also not advised of their rights and didn’t received the mandatory police report.

On June 19th 2011, a demonstration of “indignés” was organized in front of Notre Dame in the 4th district. No dispersion order was taken. But the peaceful demonstrators were kettled by riot police (CRS), military riot police (gendarmerie mobile) and plainclothes police officers. They were then arrested, searched, detained and transported to police stations before being released without charge (video 1, video 2).

On July 8th 2011, 5 citizens were waiting on the sidewalk of the embassy of Russia in the 16th district. They wanted to submit a 14,000 signatures petition urging Russia to execute ECHR judgment Alekseyev v. Russia (4916/07; 25924/08; 14599/09) by allowing gay-pride demonstration to take place safely in Moscow. No dispersion order was taken. But the 5 citizens including the Russian applicant Mr. Alekseyev were all arrested, detained and transported to the police station of the 4th district. Mr. Alekseyev was released only 8 hours later. On July 9th 2011, peaceful demonstrators supporting Palestine were kettled and arrested (video 2) in the 4th district.

On September 14th 2011, the French minister of interior threatened to use violence if any regular peaceful gathering of Muslims for Friday prayers will take place after September 16th 2011. On September 16th 2011, the police department of Paris expressed its “satisfaction” that Muslims renounced to gather for Friday prayers in the 18th district of Paris. On September 17th 2011, Xavier Dor organized a gathering to “pray” against the opening of an abortion clinic at the hospital Tenon in 10th district. The organizer an extreme right activist, was already condemned to fines and jail for behaviors toward abortion patients, doctors and nurse interfering with patient’s abortion (art. L2223-2 of the health code). Even though the gathering was in front of the hospital, no dispersion order was taken and no demonstrators were arrested. On September 19th 2011, peaceful demonstrators “indignés” were kettled, assaulted by pepper spray, arrested and searched in the 6th district by police officers (video 2,video 3). On September 21st 2011, peaceful demonstrators “indignés” showing their passports and identity cards were kettled, arrested, assaulted, searched, detained in police bus and transported to police stations (video 1, video 2, video 3, video 4). On September 23rd 2011, 11 citizens “indignés” were on the sidewalk, just released from the cells of the “dépôt” (jail) of the tribunal of Paris in the 1st district. A plainclothes police officer asked them illegally to disperse their gathering (see video below).

These examples shows that the police department of Paris have an administrative practice in 2011 to unlawfully detain some peaceful demonstrators to interfere with their exercise of their freedom of peaceful assembly. The unlawful detention by a police officer, is an offense carrying a maximum penalty of 7 years in jail and a 100,000 euros fine (art. 432-4 of the penal code). These interference are not prescribed by law and seems to target peaceful demonstrators on the ground of their opinion, sexual orientation and religion. In the newsletter PPrama of the police department of Paris (no181), an official acknowledged that the demonstrators “indignés” are trying to gather peacefully. But he stated that police officers have to “very reactive to strangle at birth this kind of inclination“.

Therefore the unlawful detention of peaceful demonstrators on discriminatory grounds to interfere with their freedom of peaceful assembly is a violation of articles 5-1 and 11 of the Convention in conjunction with article 14.

On December 9th 1999, Mr. Thierry Ehrmann an artist opened a museum “the Organ” which offered residency for artists in the Abode of Chaos. The domain in the town Saint Romain au Mont d’Or, is the property of the real estate trust VHI owned by the artist. On December 9th 2004, the mayor of Saint Romain au Mont d’Or complained to the prosecutor of Lyon that there was drawings and slogans painted on the outside walls of the property.

On February 16th 2006 the tribunal of Lyon condemned the artist and the real estate trust VHI to fines of 20,000 and 100,000 each for infractions to the code of urbanism and ordered the walls to be cleared of drawings within 6 months. On September 13th 2006, the appeal court of Lyon condemned the artist to a fine of 200,000. On December 11th 2007, the supreme court (cour de cassation) annulled the ruling of the appeal court (case 06-87445). On December 16th 2008, the appeal court of Grenoble condemned the artist to a fine of 30,000, awarded damages of €1 to the town of Saint Romain au Mont d’Or and ordered the walls to be cleared of drawings within 9 months. On December 15th 2009, the supreme court rejected the appeal of the artist (case 09-80709).

On December 31st 2009, the applicants lodged their case to the European Court of Human Rights arguing that the fine of €30,000 and the order to clear the drawings of the outside walls were a violation of articles 10 and 1P1 of the Convention. He added that the ruling of the appeal court of Grenoble was a violation of article 7 of the Convention because pieces of art are by law exempted from the regulations of the code of urbanism (art.R421-1 6)). The applicants are represented by Me Thierry Moulin (Lyon).

On June 7th 2011, the Court found the application to be inadmissible on the ground that the condemnation of the artist was to “defend order” therefore “necessary in a democratic society“. The Court as the French courts refused to rule if the drawings on the outside walls of the domain are pieces of art. Surprisingly the Court invokes the Framework Convention on the Value of Cultural Heritage for Society not to protect the artist drawings but to justify the order to clear them in the name of..the conservation of “cultural heritage” . The Convention have not yet been signed by France.

On July 18th 2011, the 5th section of the Court modified the decision Ehrmann and VHI v. France by removing a statement indicating that observations of the government and the reply of the applicant were received by the Court. The head of registrar of the 5th section Claudia Westerdiek didn’t answer our email for comment. According to the applicant (see below his video), he never received the observation from the French government and never submitted any. He announced his intention to file soon another application with the Court.

On April 26th 2007, the Court found a violation of articles 13 and 3 of the Convention in judgment Gebremedhin v. France (25389/05), on the ground that the emergency appeal of the applicant on the refusal to admit him in France to file his asylum claim, didn’t automatically suspend his removal. The applicant was advised by Me Jean-Eric Malabre (Limoges/Paris) and the NGO Anafe submitted observations amicus curiae to the Court.

On November 21th 2007, article 34 of the law 2007-1631 modified article L213-9 of the immigration and asylum code. It now allows asylum seekers who are denied entry, to appeal this decision to the administrative tribunal. Their removal is suspended for 48 hours or until the decision of the tribunal if an appeal is filed.

According to the report (see below) of the French ombudsman(mediateur de la Republique) and the French NHRI (CNCDH), the new remedy lacks effectiveness as asylum seekers who are denied entry, are detained and have only 48 hours to file their appeal (case Ma. v. France (4920/08)  communicated). Moreover they don’t qualify for legal aid (article 3 of law 91-647) and have to finance their own lawyer and their own interpreter to file the appeal. They added that further appeals to the administrative appeal court and to the administrative supreme court (conseil d’etat) don’t suspend the removal (case Se v. France (10085/08) communicated).

Furthermore, citizens who didn’t state their intent to claim asylum before being denied entry, don’t benefit from the suspension of their removal during their appeal, even they fear a violation of article 3 if deported. Ms. Laure Blondel from the NGO Anafe gave us the following example. On February 22th and 23th 2011, the French border police attempted to deport a Senegalese citizen to Libya notwithstanding that an hearing was scheduled on February 24th 2011 on his emergency appeal.

The execution of judgment Gebremedhin v. Frances is still under review by the Committee of Ministers under standard supervision.

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