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On April 29th 1999, the Grand Chamber of the European Court of Human Rights found in judgment Chassagnou and others v. France (25088/94 ; 28331/95 ; 28443/95) a violation of articles 1 of protocol 1 and article 11 in conjunction with article 14 of the Convention because the applicants were forced to belong to a hunting association (ACCA) and to let armed hunters and hunting dogs from this association enter their land.
The Court ruled a violation of article 14 because large land owners could be exempt to belong to the ACCA of their county and in the county with no ACCA, any landowner could refuse armed hunters to enter his property.
On April 25th 2005, the Committee of Ministers adopted resolution (2005)26 after being informed by the agent of the French Republic that the new article L422-10 of the code of environment will prevent new violation of the Convention as a general measure and satisfy the applicants as an individual measure.
On August 9th 2001, Ms. Simone Lasgrezas who was an applicant in judgment Chassagnou and others v. France (25088/94), requested to withdraw from the ACCA. On October 18th 2001, she was informed by the prefect that she won’t be authorized to withdraw from the ACCA before March 8th 2005 under article L422-18 of the code of environment. On October 31th 2002, the administrative tribunal of Bordeaux rejected her appeal. On June 27th 2006, the administrative appeal court of Bordeaux confirmed the judgment. On November 9th 2007, she lost her appeal (296858) to the administrative supreme court (conseil d’état).
On May 29th 2008, N.G.O ASPAS and the applicant filed an application with the E.C.H.R arguing a violation of article 1 of protocol 1, article 11 in conjunction with article 14 under the same ground as in 1994. On September 23th 2009, the application was communicated to the agent of the French government with questions to be answered with 16 weeks. On January 26th 2010, the agent submitted his answers to which the applicants answered (see below). ASPAS and the applicant are advised by Me Gregory Delhomme (Montelimar).
This application raised serious concern not only about the respect by France of article 46-1 of the Convention in the execution of judgment Chassagnou and others v. France but also on the ability of the department for the execution of judgments to verify the truthfulness of statement made by the agent of the French Republic to the Committee of Ministers.
On September 22th 2011, the Court found no violation of article 1P1, 11, 14 of the Convention on the ground the applicant could have withdraw her property from the ACCA…. if she had applied earlier in the year.
On May 7th 2009 at 08:50, Mr. Mosashvili was arrested for entering Monaco despite his administrative ban of the country (art. 23 executive order 3153 1964). He was placed in police custody for up to 24 hours under the control of prosecutor general (art. 60-1 of the code of penal procedure).
He was then brought the same day at 14:30 to the prosecutor general (art. 252) who issued an “arrest warrant” for his detention at the local jail (art. 162) for up to 6 days awaiting special speedy trial (art. 399). There is no provision in the code to grant bail to suspect or to motivate the “arrest warrant” for pretrial detention.
On May 8th 2009, he was brought to the tribunal and sentenced to one month in jail. On May 18th 2009, the appeal court rejected his appeal. On November 5th 2009, the applicant lost his appeal to the supreme court.
On May 4th 2010, he filed an application to the European Court of Human Rights arguing that the control of the police custody and the issue of an “arrest warrant” by the prosecutor general were violations of article 5-3 of the Convention. According to the applicant, the prosecutor general in Monaco being under the control of the executive branch, lacks the independence needed to have any “judicial power“.
He also complained of a violation of article 6-1 of the Convention on the ground that the supreme court allows the prosecutor general to submit his brief 4 months late in violation of article 479 and the prosecutor general is responsible of transmitting the briefs to the supreme court without any deadline (art. 485). The applicant was represented by Me Regis Bergonzi (Monaco).
On March 23rd 2011, Mr Philippe Narmino head of the justice department of Monaco revealed that he has been informed by an unknown source that the application was found inadmissible by an unknown Judge of the ECHR in February 2011.
On May 30th 2011, Mr. Erik Fribergh of the registrar of the Court refused to communicate us the decision as well as the name of the Judge who took it. On July 22th 2011, Me Regis Bergonzi refused to communicate us the decision because it was “vague“.
On March 29th 2001, the police department of Neuchatel refused to the Swiss Raelian movement the authorization to put posters from April 2th to April 13th 2001 on the ground of article 19 of the police department rules. This article allows the police department to forbid “illegal posters” or “posters threating morals“
On April 22th 2005, the administrative tribunal of Neuchatel rejected the appeal from the movement. On September 20th 2005, the federal tribunal rejected the appeal (1P.336/2005) on the ground that the interdiction of these posters was necessary “in a democratic society for the protection of morals“.
On April 10th 2006, the movement filed a case with the ECHR (see below) arguing that the interdiction to display their posters was a violation of articles 9 and 10 of the Convention. On May 20th 2008, the ECHR communicated the case to the agent of Switzerland with questions to be answered within 16 weeks. On September 9th 2008, the agent for the government submitted his observations answered on November 4th 2008 by the applicant. The Swiss Raelian movement was represented by Me Elie Elkaim (Lausanne).
On January 13th 2011, the E.C.H.R ruled by 5 to 2 votes there was no violation of article 10 of the Convention on the ground that the Swiss State benefits of a “margin of appreciation” about the use of its public space and the State has reasonable grounds to forbid the posters (59). The Court didn’t examine the allegation of violation of article 9 of the Convention.
In their dissenting opinion Judges Rozakis and Vajic expressed that the movement was not forbidden in Switzerland and should be able to promote by posters its ideas (3.a) and its non forbidden website (3.b).
On January 12th 2010, the ECHR ruled in judgment Gillan and Quiton v. United Kingdom, that the “stop and search” of the 2 applicants, were not “in accordance with the law” because the power to stop and search under section 44 of the terrorist act 2000, was not subject to a requirement of “reasonable suspicions” (§86) and to adequate legal safeguards (§87). Therefore the Court found a violation of article 8 of the Convention and didn’t examine the allegation of violation of article 5.
The article 78-2 of the French code of penal of procedure, allows “stop” with no requirement of “reasonable suspicions”, to protect “public order” or on a road, highway near a land border, in airports, in train stations or in an area defined by an order of the local prosecutor of the Republic. Frisks and “volontary” searches are not allowed by law but widely practiced. The “stop and search” is not officially recorded if the citizen is not brought to the police station. It makes it extremely difficult for an individual to challenge a “stop and search” in an action for damages (art.5-5 and art. 13).
Furthermore, searches of vehicles on the road or in parking lots are allowed under article 78-2-2 of the code of penal procedure with no requirement of “reasonable suspicions” in an area defined by an order of the local prosecutor of the Republic. Police officers can even detain any individual stopped for up to 4 hours under article 78-3 for further verification if the individual can’t or refuse to prove his identity. The detainee is not informed of the legal basis of the “stop” (art.5-2) but can request in case of further verification, the notification of the prosecutor of the Republic and upon release a custody record. Under French law, there is no proceedings by which the lawfulness of this detention could be decided by a court (art.5-4).
In June 2009, the NGO Open Justice Initiative released his report “Profiling Minorities: A Study of Stop-and-Search Practices in Paris“, with findings of discriminatory “stop and search” based on ethnic profiling and made recommendations to the French authorities. No amendment were made to the law.
On June 22th 2010 the Court of Justice of the European Union ruled in cases Melki (C-188/10) and Abdeli (C-189/10) that a section of article 78-2 was in violation of the Schengen Borders Code (EC) 562/2006 due to the lack of requirement of “behaviour and of specific circumstances giving rise to a risk of breach of public order”. No amendment were made to the law.
In conclusion, the French “stop and search” law raises serious concern of compliance with articles 5-1, 5-2, 5-4, 5-5, 8 and 13 of the Convention. The practice of discriminatory “stop and search” could add a violation of article 14 of the Convention to the previous violations.
After a first reading of Bill 563 at the National Assembly on November 25th 2010 (see previous post), the Bill 563 was sent back to the Senate for a second reading.
On November 30th 2010, at the 1100th meeting of the Committee of Ministers, it was announced that France didn’t submit yet any observation regarding the general measures taken following judgment Medvedev (3394/03) on March 29th 2010.
On 7th December 2010, the rapporteur Senator Dulait couldn’t answer the question of the president of the foreign affairs commission on how the release of the detainee will be organized following a judge order, as there is no provision in Bill 563 for this occurrence.
On December 22th 2010, Senator Boutant questioned the compliance of Bill 363 with the judgments Medvedyev v. France (3394/03) and Moulin v. France (37104/06) as the arrest of a sailor is not notified to a judge (art.5-1-c) but to the prosecutor of the Republic and there is no provision for detainee to have access to a lawyer (art.6-1, 6-3). Mr. de Raincourt representing the defense minister at the hearing, answered that he didn’t want to discuss this mater because it was not “his mission“.
A few minutes later, Bill 563 was passed by the Senate with no amendment. On January 5th 2011, President Sarkozy signed Bill 563 into Law 2011-13.
Law 2011-13 allows in derogation of the code of penal procedure, the arrest and the indefinite incommunicado detention of sailors who were on board ships which are suspected of drug trafficking, attempt of illegal entry in France or piracy. Law 2011-13 creates a French Guantanamo in the high seas.
Following our request for comments on our previous post, Mr. Tobias Thienel a contributor to the Invisible College Blog of the School of Human Rights Research, submitted us the following opinion on Bill 563 (see below).
The court docket of the ECHR contains two pending cases on the arrest and detention in high seas. Case Vassis and others v. France (62736/09) on the detention of the sailors of Junior was filed on October 29th 2009. Case Samatar and others v. France (17301/10) regarding the detention of Somali citizens pending the opening of an investigation on the hostage taking aboard the Ponant, was filed on March 16th 2010. Both have not yet been communicated to France
On August 15th 1994, Mr. Ramirez Sanchez a citizen of Venezuela was abducted in Sudan and then victim of an extrajudicial rendition to France carried out by officers of the French domestic intelligence agency (DST).
From August 15th 1994 to October 17th 2002, he was placed in solitary confinement and transferred between the 3 infamous jails in the Paris region (La Sante, Fresnes, Fleury-Merogis) by decisions of the administration of the ministry of Justice on unknown ground.
On June 24th 1996, the European Commission of Human Rights ruled in case Ramirez Sanchez v. France (28780/95) that the abduction and the extrajudicial rendition to France were not a violation of articles 3 and 5 of the Convention.
On December 25th 1997, he was condemned to life in prison for the murder on June 27th 1975 in Paris of 2 officers of DST and one agent of an unknown agency, in unclear circumstances. From October 17th 2002 to March 18th 2004, he was transferred to the prison of Saint-Maur and placed in a normal unit.
From March 19th 2004 to January 5th 2006, he was again placed in solitary confinement and transferred again between the 3 infamous jails (La Sante, Fresnes, Fleury-Merogis) because he talked about politics to a journalist. From January 5th 2006, he was transferred to the prison of Clairvaux and placed in a normal unit.
On July 4th 2006, the Grand Chamber of the E.C.H.R ruled by 12 votes against 5 votes, in case Ramirez Sanchez v. France (59450/00), that the solitary confinement the applicant for 8 years (1994-2002) was not a violation of article 3 on the ground that… the applicant would have talk about politics with other inmates (§149). In solitary confinement the applicant was waken up every hour of the night by prison wardens (§95).
The Grand Chamber ruled also that the absence of a domestic remedy to challenge a decision of solitary confinement was a violation of article 13 for the first period (1994-2002). The applicant was represented by Me Isabelle Coutant Peyre (Paris).
For the second period (2004-2006), the Grand Chamber ruled that since the administrative supreme court judgment Remli v. minister of Justice no 252712 on July 30th 2003, the administrative tribunal was a “remedy” to challenge of decision of solitary confinement. It then didn’t find a violation of article 13 and didn’t examine the violation of article 3 because of this remedy (§113). Surprisingly, the Court didn’t examine the effectiveness of the remedy of the administrative tribunal even though the applicant was questioning it in its observations of October 3rd 2005 (§3) and December 30th 2005 (§3).
Mr. Remli was serving in solitary confinement a sentence after an unfair trial (judgment Remli v. France (16839/90)). The administrative supreme court judgment Remli v. minister of Justice no 252712 on July 30th 2003 ruled that the decision of …June 18th 1998 to detain the plaintiff in solitary confinement was “illegal” but it didn’t award him damages and didn’t find a violation of articles 3 or 8 the Convention. No disciplinary or criminal action were taken against the chief of prison following the ruling.
The remedy of the administrative court system is a lengthy one. It can take up to 2 and a half years for the administrative tribunal to rule on the legality of the solitary confinement decision (administrative appeal court of Paris, judgment 09PA05734 on October 14th 2010) which is not suspended pending ruling.
Although article 726-1 of the code of penal procedure (law 2009-1436) allows a detainee to file for an “urgent ruling” within 48 hours on the solitary confinement decision, it is constant case-law that the solitary confinement decision is inadmissible to be ruled within 48 hours (administrative supreme court judgment 337534 on March 22th 2010).
On February 15th 2006, the Commissioner for Human Rights Mr. Alvaro Gil-Robles stated in his report following a visit to French prisons in 2005 : “Prisoners placed in solitary confinement have no effective administrative remedy at their disposal” (§133).
On December 2007, the CPT stated in its report CPT/Inf (2007)44 following a visit to French prisons in autumn 2006, that for the remedy to the administrative tribunal to be effective, the solitary confinement decision should be admissible to be ruled within 48 hours. The CPT also found that detainees were not informed of their rights to appeal the decision (§157).
In September 2009, the 4th edition of the ministry of Justice “handbook for new inmates” didn’t inform about the remedy to the local administrative tribunal on a solitary confinement decision (see below p50).
On April 2010, the French N.G.O OIP stated in its observations to the U.N Committee against Torture : “Remedies against such measures are limited” (p21).
Surprisingly, on November 30th 2010, the Committee of Ministers ruled in its Resolution CM/ResDH(2010)162 that article 726-1 of the code of penal procedure and case-law administrative supreme court judgment Remli v. minister of Justice no 252712 were satisfying as general measures to prevent violation of article 13 of the Convention.
Recommendation Rec(2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies states : However, the remedy required must be “effective” in law as well as in practice; – this notably requires that it be able to prevent the execution of measures which are contrary to the Convention and whose effects are potentially irreversible; (..) the “effectiveness” of a “remedy” within the meaning of Article 13 (..) implies a certain minimum requirement of speediness.