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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).
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 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 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“.
Mr. Ernst Haas is suffering from bipolar disorder for the last 20 years. On July 1st 2004, he became a member of the NGO Dignitas in order to commit suicide. Then, he requested in vain from several psychiatrists to prescribe him the lethal drug pentobarbital sodium. On August 3rd 2005, the health department of the county of Zürich refused to deliver him this drug without prescription.
On November 17th 2005, the administrative tribunal of Zürich rejected his challenge of the decision of the health department. On December 20th 2005, the federal department of interior refused also to deliver him the lethal drug without prescription. On November 3rd 2006, the federal tribunal rejected his appeal and ruled that a mental health exam was required before prescribing the lethal drug.
On July 18th 2007, the applicant lodged his case to the Court arguing that that the refusal to deliver him the lethal drug without a prescription and a mental health exam was a violation of article 8 of the Convention. On October 16th 2008, the application was communicated to the agent of the Swiss government. On November 17th 2008, The NGO Dignitas submitted a brief amicus curiae to the Court (see below).
On January 20th 2011, the Court found no violation of article 8 of the Convention on the ground of the “margin of appreciation” and didn’t rule if States have a positive obligation to ensure that one can end his life with dignity. The appeal to the grand chamber was not accepted by the Court. The applicant was represented by Me Patrick Schaerz (Zürich) .
On January 12th 2003 at 01:15am, Mr. Yves Trévalec unarmed was shot 7 times at close range by 2 police officers of a patrol unit and a dog unit in Liege . The applicant is a journalist and was embedded with a special anti-gang police unit at the time of the shooting. An investigation was opened by an investigation judge for “assault” and carried out by the local police unit.
On March 15th 2005, the prosecutor of the king asked the investigation judge not to charge the 2 shooters on the ground that they acted in self-defense. On May 16th 2006, the tribunal of Liege refused to charge the 2 shooters. The ruling was confirmed by the appeal court of Liege. On April 18th 2007, the supreme court rejected the appeal of the applicant.
On July 16th 2007, the applicant submitted his case to the European Court of Human Rights arguing that the close range shooting was a violation of article 2 of the Convention. He added that the 3 years investigation was not effective in violation of article 2 and that the court didn’t answer his observations in violation of article 6-1. The applicant was represented by Me Jean Gonthier (Bordeaux). On April 28th 2008, the application was communicated to the agent of the Belgium government with questions to be answered within 16 weeks.
On June 14th 2011, the Court found a violation of article 2 of the Convention on the ground that the police of Liege was careless in setting up the embedment of the journalist. The Court found no violation of article 2 in regards with the investigation. It awarded the applicant €0 for his legal fees. The amount of damages will be evaluated at a later date.
On June 10th 1998, Mr. Kamel Ketreb was detained without bail in the notorious prison “La Santé” awaiting trial on assault charge. He was examined several times by psychiatrists. Despite his mental illness, he was placed three times in solitary confinement as a displinary measure. During his second placement in solitary confinement, he attempted two times to hang himself according to a doctor of the prison.
On May 20th 1999, he was placed for the third time in solitary confinement for 15 days. On the same day, prison guards pepper sprayed him in his displinary cell. On May 21st 1999, he showed his injured forearms to his sister and his t-shirt was covered with blood. On May 24th 1999, a prison guard found him dead, hung to the ceiling of his cell. On June 17th 1999, the prosecutor of the Republic of Paris closed his administrative investigation on the cause of death and didn’t request the opening of a criminal investigation.
On July 27th 1999, the sister of Mr. Ketreb filed a criminal complain to the investigating judge for “involuntary manslaughter“.
In January 2000, Doctor Veronique Vasseur published a book on his experience of 8 years as the chief doctor of the ethnically segregated prison “La Santé”. She described nightmarish condition of detention and the lack of access to health care for detainees suffering from mental illness. The book stirred such an outcry that a group of Senators opened a full investigation with public hearings and visits of French prisons. On June 29th 2000, they published an extensive report on the condition of detention in French prisons with alarming conclusions. It confirmed many of the findings that the CPT made following its visits of the prison “La Santé” in 1996 and 2000.
On April 8th 2008, an investigating judge sent the ex-director of the prison ”La Santé” and the health care provider AP-HP to trial. But the prosecutor of the Republic of Paris, Jean-Claude Marin appealed the decision to the judges of the investigation chamber of the appeal court of Paris. On December 3rd 2008, the 3 judges of the investigation chamber dismissed all charges.
On June 3rd 2009, the applicants, sisters of Mr. Ketreb submitted an application to the European Court of Human Rights arguing that the absence of health care in the prison and lack of surveillance of their brother were a violation of article 2 of the Convention. They added that the disciplinary measures of solitary confinement were a violation of article 3 of the Convention. They are represented by Me J. Bertrand (Paris). On March 29th 2010, the application was communicated to the agent of the French government with questions to be answered within 16 weeks.
On February 27th 2011, Mr. Jean-Marie Delarue controller of the French detention facilities refused to communicate us the report of his 2009 visit of the prison “La Santé” even though the French FOIA agency (CADA) was favorable to this release (2011/0462). Mr Jean-Marie Delarue is also one of 4 adhoc judges submitted by the French government to the ECHR.
On October 22th 2008, Mr. Bertrand Rappaz was condemned to more than 5 years in jail for various offenses resulting from his activity as a farmer of marijuana. On March 2010, he was jailed at the prison des Iles in Sion.
A long time non violent and environment activist, he began an hunger strike to protest against the criminalization of the farming of marijuana and its lengthy sentence. Following a deterioration of his health, he made several requests for his sentence to be temporarily suspended for health reason (art. 92 of penal code).
He was temporarily released 2 times, and stopped his hunger strike. Once jailed again, he started a new hunger strike and was hospitalized in the penitentiary wing of the university hospital of Geneva.
On November 10th 2010, a judge ordered Dr. Hans Wolff, head of the penitentiary wing to practice forced feeding on the applicant but the doctor refused to carry it out.
On December 7th 2010, his last request (6B_1022/2010) was rejected by the federal tribunal on the ground that the “medical treatment” that he could receive will be the same whether he is detained or free. The tribunal didn’t take into account that the detained applicant was on hunger strike to protest against his detention and that Dr. Hans Wolff refused to carry out forced feeding. Moreover the ruling didn’t specify what kind of “medical treatment” the applicant could receive.
Swiss doctors and nurses associations already alerted that the forced feeding of a hunger strike patient is against the international ethics standard set by the World Medical Association (Declaration of Malta).
On December 14th 2010, the applicant filed an urgent motion under article 39 [fr], requesting that the Court order the Swiss government to temporarily suspend his sentence pending the decision of the Court. The applicant complained that the refusal to suspend his sentence was a violation of articles 2 and 3 of the Convention.
On December 16th 2010, Judge Christos Rozakis refused to grant the request. Surprisingly, Judge Christos Rozakis officially requested the applicant to stop his hunger strike thereby renouncing to his right to freedom of expression (art.10). Both decisions were unmotivated and the name of the judge is not revealed (see below). The applicant is represented by Me Aba Neeman (Monthey).
Following the decision of the Court, the applicant ceased his hunger strike and filed a complain for damages for his condition of detention in the penitentiary wing.
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 January 16th 2000, Ms. Sonja Suder and her partner Mr. Christian Gauger were arrested following an extradition request from Germany for an investigation on crimes committed for political reasons from 1975 to 1978. The couple have been living in France since the 1980s. On March 22th 2000, they were both released.
On March 28th 2001, the investigation chamber of the court of appeal of Paris ruled against the extradition of the applicants to Germany on the ground that the crime committed from 1975 to 1978, could not longer be prosecuted under French statute of time limitation.
On October 30th 2007, the applicants were again arrested following a new request from Germany for the same investigation on crimes committed for political reasons from 1975 to 1978. On November 14th 2007, Mr. Gauger was released from thejail of La Santé, and on November 28th 2007, Ms. Suder was released from jail of Fresnes.
On February 25th 2009, the investigation chamber of the court of appeal of Paris ruled in favor of the extradition of the applicants to Germany. On May 27th 2009, the supreme court rejected the appeal from Ms. Suder (09-81731) and from Mr. Gauger (09-81732).
On July 29th 2009, the prime minister signed a decree of extradition for both applicants. On December 3rd 2010, the administrative supreme court rejected the appeals of both applicants (334683 and 334684) on the decree of extradition.
On October 22th 2010, the applicants filed two applications Gauger v.France (61393/10) and Suder v. France (61467/10) with the E.C.H.R arguing that the extradition of Ms. Suder (77 years) and Mr. Gauger who suffered a brain stroke in 1997, will be a violation of article 2,3 and 8, and that the new ruling on the new request for the extradition of the applicants was a violation of article 6-1 and article 4 of protocole 7. The applicants are represented by Me Irene Terrel (Paris).
In December 2010, the Court rejected the application for suspension of the extradition proceeding (art.39). On September 14th 2011, the applicants were arrested and extradited to Germany to be detained in prison.
On March 29th 2010, the Grand Chamber of the ECHR ruled [en] that the arrest and the detention of the sailors of the cargo ship “Winner” by the French Navy was in violation of article 5-1-c) of the Convention. It was found that their arrest and their detention on the high seas for 13 days was not lawful for lack of legal basis. Controversially, the Grand Chamber didn’t find a violation of article 5-3 of the Convention by 9 votes against 8 because it was alleged by the French Republic that the detainees “met” an investigating judge within 8 hours of their arrival on French soil.
On November 25th 2010, bill 563 was passed by the National Assembly to introduce provisions in the code of defense in derogation of the code of penal procedure, for the arrest and detention on the high seas, of sailors on board ships which are suspected of drug trafficking, attempt of illegal entry in France or piracy.
According to new article L-1521-12 of the code of defense, no cause is needed for the arrest and detention by the French Navy of sailors and no judge is notified of their arrest. Furthermore, according to new article L-1521-14, their detention is deemed indefinite until a transfer to an “authority“.
Bill 563 is therefore in violation of articles 5-1-c) of the Convention for a lack of legal basis. The French Republic still didn’t take appropriate general measure to prevent further violation of article 5-1-c) of the Convention, so there is violation of articles 1 and 46-1 of the Convention.
After 2 days of detention, the French Navy may request a judge to authorize further detention. The judge have no right to access the military files regarding the arrest and the detention of the sailors, and no power to order their immediate release to their own ship, the nearest ship or a port.
If the sailors are finally brought to the French Republic, the lawfulness of their arrest and detention on the high seas will be only reviewed by an investigation chamber if their defense lawyers submit a motion to dismiss, within 6 months of their indictment (art. 170, 173-1 of the code of penal procedure). In the case of the detainees of the “Winner“, the chamber ruled 3 months after the arrival in France. In other recent cases, the investigation chamber ruled 9 months (case “Junior” CC 09-80157), 11 months (case “Ponant” CC 09-8277) and 12 months in (case “Carré d’As” CC 09-87254) after the arrival.
Bill 563 is in violation of article 5-3 of the Convention which requires an automatic, prompt review of the lawfulness of the arrest and the detention (§124,125 Grand Chamber judgment Medvedyev v. France (3394/03)).
Moreover, bill 563 doesn’t create a “habeas corpus” remedy for the detainees on the high seas in violation of article 5-4 of the Convention or an enforceable right to compensation for the victim of unlawful detention in violation of article 5-5 of the Convention.
Finally, bill 563 brings serious concerns about the protection of the detainees on the high seas against violations of article 3 and 8 of the Convention. The high sea detainees are held incommunicado with no access to a lawyer, a doctor, family members, delegates of UNHCR, ICRC and NGOs, and consulate officers (art. 36 of the Convention of Vienna on consular relations). The new article L-1521-13 allows only one mandatory examination by a military doctor within 10 days of a health check by a military nurse, itself within 24 hours of the arrest.
Even worse, new article L-1521-14 allows extra-judicial rendition to any “authory” of any countries. The rendition to countries known to practice death penalty or torture (ex: Somalia) will results in violations of articles 2 and 3 of the Convention and article 3 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The rendition of detainee claiming asylum will be in violation of article 33 of the UN Convention Relating to the Status of Refugees.
On April 24th 1983, Mr. Pierre Atallah a Lebanese lawyer, is shot dead by several French soldiers of the FINUL in unclear circumstances. An investigation is done by the French military police and another one by the Lebanese military police.
In 1999, the family discovered evidence contained in the Lebanese military police report which contradicts the findings of self-defense made in the French military police investigation.
In March 2001, the family filed at the tribunal of Paris, a civil lawsuit against the French minister of defense. On July 31th 2003, the court dismissed the case, claiming to be incompetent. On December 16th 2005, the appeal court of Paris dismissed the appeal. On May 10th 2007, the supreme court (Cour de cassation) rejected their claim (case 06-12532).
On November 9th 2007, the applicants filed their case with the E.C.H.R arguing a violation of article 2 and 6-1 of the Convention. .On November 4th 2009, the case was communicated to the French government. The applicants are represented by Me Bertrand Favreau (Bordeaux).
On August 31st 2011, the Court ruled the application inadmissible on the ludicrous ground that the applicants should have filed their application with the Court within 6 months of…a meeting with the Lebanese military police on April 24th 1983. The Court also concluded that the applicants couldn’t hope that the civil lawsuit in French courts the death will bring a “new light to the case“.
On December 5th 2004, Mr. T. became unconscious in a cell of the police station of Courbevoie. He then fall into coma and died on January 24th 2005. First, the prosecutor of the county of Hauts-de-Seine refused to investigate the case and then close the investigation on March 10th 2005.
The family then decided to hire their own lawyer and file a complain to an investigating judge for “torture to death“. The investigation by the I.G.S (internal affairs) is ongoing for more than 4 years and no police officers have yet been charged. Since September 2009, the investigation came to almost a complete stop, even though new evidence shows that the police officers lied in their sworn statement.
According to Amnesty International France, no credible explanations for the wounds and the death of Mr. T. has been given so far by police officers and the investigation on the complain was not effective. This would constitute a violation of both articles 2 and 3 of the Convention. In absence of an effective investigation, it could be considered that the national remedies don’t have to be exhausted in this case.
Me Yassine Bouzrou stated in an email that the investigation by I.G.S was not effective. But he decided to wait for the end of the investigation before bringing the case to the E.C.H.R.