On July 27th 2006, the E.C.H.R found in the case of Zervudacki v. France (73947/01) a violation of articles 5-1-c) and 5-4 of the Convention, for the detention of the applicant on June 12th 1997 in the tribunal of first instance of Nanterre . Following a detention of 47h45 in police custody, the applicant was detained for 13h30 in this tribunal before being charged by an investigating judge. The Court didn´t examine the allegation of violation of article 5-3. The applicant was represented by Me Helene Farge.
The Court found a violation of article 5-1-c) on the ground there was no law authorizing such detention. This case-law was confirmed in case Maire d’Eglise v. France (20335/04).
The Court found also a violation of article 5-4 on the ground there was no proceedings by which the lawfulness of this pre-charge detention could be decided and the release ordered if the detention was unlawful.
In February 11th 2004, the French parliament voted law 2004-204 which added articles 803-2 and 803-3 to the criminal procedure code. Under these articles, the pre-charge detention following police custody is authorized for up to 24 hours. This pre-charge detention is under the supervision of the prosecutor, in violation of article 5-1-c) according to a constant case-law of the E.C.H.R since 1979 confirmed in case Medvedyev v. France (3394/03) in paragraph 61-63.
No “habeas corpus” proceeding were created to allow suspects in pre-charge detention to have the lawfulness of their detention reviewed and to be released in case their detention was deemed unlawful.
But on the 992th meeting of 5-6 June 2007, the Committee of Ministers decided to close the monitoring of the execution of the case on the ground that the delegation of French Republic communicated to the secretariat an unpublished notice of the ministry of justice to prosecutors stating “that requirements of Article 5§4 can only be satisfied by bringing detainees before an investigating magistrate or a court“.
This notice of the ministry of Justice confuses obviously article 5-4 and 5-3 of the Convention, and clearly don´t answer the clarification asked at the 987th meeting of 13-14 February 2007 (“However, it is not clearly apparent that persons thus detained may bring the matter promptly before a judge for determination of the lawfulness of their detention.”).
Today there is still no “habeas corpus” proceeding for detainees in police custody or in the cells of a tribunal, to determine the lawfulness of their pre-charge detention. This leads to numerous unlawful pre-charge detentions of up to 3 days, as demonstrated by one recent example.
The agenda of the 1100th meeting of November 30th 2010 shows that the status of the execution of the case Zervudacki v. France is “6.2 Cases waiting for the presentation of a draft final resolution.“
The Department for the Execution of Judgments didn´t answer our emails requesting the communication of the unpublished notice of the ministry of Justice.