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On November 4th 2010, the the ministry of Justice notified all prosecutors and judges of France (source : Me Eolas), that prosecutors were ordered to initiate together with local law enforcement officials, ex-parte meetings with judges about the suspension of articles 6-1 and 6-3 of the Convention for suspects in police custody.
According to the unclear wordings of the ministry, these ex-parte meetings seems to be organized to avoid that judges continue to dismiss interrogation transcript of suspects in police custody, for violation of articles 6-1 and 6-3 of the Convention. The notices also request all prosecutors to inform the ministry of Justice of any “difficulty” they might encounter while executing this order and of any judgment or court order which didn’t consider that articles 6-1 and 6-3 of the Convention were suspended for suspects in police custody.
The order to initiate these ex-parte meetings seems in full violation of articles I.2.d, V.1, V.3.b of the Recommendation R(94)12 of the Committee of Ministers to members states on the independence, efficiency and role of judges and of articles 13.b, 19, 24.b, 28 of the Recommendation Rec(2000)19 of the Committee of Ministers to member states on the role of public prosecution in the criminal justice system.
The content and the date of these ex-parte meetings between prosecutors and judges will not be released to the defense lawyers and to the public.
A breach of article 6-1 of the Convention (..everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal..) could then be found for all the proceedings in which a judge participated in such ex-parte meetings with the prosecutor.
The order to initiate these ex-parte meetings seems then in violation of article 1 of the Convention (The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention).
On October 19th 2010, the ministry of Justice notified all district attorneys (D.A) and judges of France that the rights under article 6-1 and 6-3 of the Convention were suspended for suspects in police custody until July 1st 2011. According to the official notice, these rights are the right to be informed of the right to remain silent and the right to have the legal assistance of a lawyer during police interrogation (case Brusco v. France (1466/07)).
The notice also stated that judges in France cant dismiss confession obtained in violation of articles 6-1 and 6-3 of the Convention and that any ruling of dismissal will be appealed by the district attorney.
The suspension seems to apply from May 3rd 1974, date of the entry into force in France of the Convention for the Protection of Human Rights and Fundamental Freedoms to July 1st 2011.
The notice explained that this suspension of articles 6-1 and 6-3 of the Convention is based on 3 controversial rulings of the supreme court on October 19th 2010(case Tisset (10-82.902), case Sahraoui (10-82.306), case Bonnifet (10-85.051)). Case Sahraoui and Bonnifet were brought to the supreme court following appeals by the D.A of the appeal court of Poitiers and the one of the appeal court of Agen.
The D.A of the supreme court pleaded that the articles 6-1 and 6-3 of the Convention should be considered having being suspended until July 1st 2011 because the agency Conseil Constitutionnel already ruled in the application 2010-14/22 QPC [en] that rights under the Constitution were suspended for suspects in police custody until July 1st 2011. The ruling of the supreme court in favor of the retroactive suspension of the Convention for a “good administration of justice“, was a move that left numerous lawyers in France bewildered.
In fact, the obligation of the French Republic under the articles 6-1 and 6-3 of the Convention, can only be suspended “in time of war or other public emergency threatening the life of the nation” (art.15-1 of the Convention). The Secretary General of the Council of Europe couldn´t confirm to have been informed of the suspension announced by the ministry of Justice (art.15-3 of the Convention).
The suspension by the French ministry of Justice of articles 6-1 and 6-3 of the Convention seems then blatantly in violation of article 1 of the Convention (The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention).