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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.

On January 23rd 2002, an investigation judge delivered a warrant for the arrest of Mr. Ahmed Bouhajla in an investigation on drug trafficking. On September 27th 2002, the applicant was condemned in absentia to 10 years in prison and to a lifelong ban of France by the tribunal of Paris.

In 2005, he was arrested in the Netherlands and extradited to France. On May 27th 2005, he appealed the judgment.

On September 30th 2005, he was condemned to the same sentence by the tribunal of Paris. The tribunal relied on testimonies of 4 witnesses (A. B. L. Z.) during the police investigation. These witnesses for the prosecution were not summoned by the prosecutor and were absent at the hearing.

The applicant summoned at his own cost the 4 prosecution witnesses for the appeal court hearing on March 14th 2006 but none of them shown up at the hearing. The prosecutor didn’t request a later hearing to summon them himself and didn’t request that a warrant for their immediate arrest be issued by the judges (art.439 of the code of penal procedure). The judges didn’t issue an immediate arrest warrant for the 4 prosecution witnesses but used their testimonies during the investigation to condemn the applicant.

On September 5th 2007, the supreme court rejected the appeal of the applicant based on article 6-3-d) of the Convention on the ground that…the judgment didn’t mention that the applicant made oral observations regarding the absence of the 4 witnesses for the prosecution or requested orally to postpone the hearing to summon them again.

On April 15th 2008, the applicant submitted his case to the European Court of Human Rights arguing that the conviction based on testimonies of prosecution witnesses absent at trial was a violation of article 6-3-d) of the Convention. The applicant is represented by Me Thomas Bidnic (Paris). On September 2nd 2009, the application was communicated to the agent of the French government with questions to be answered within 16 weeks. On April 16th 2010, the applicant submitted his observation.

On June 7th 2011, the Court found the application inadmissible on the ground that the applicant didn’t exhaust internal remedies and should have have submitted at the hearing written conclusions (art. 459 of the code of penal procedure) to “request” the judges to order a warrant for the immediate arrest of the prosecution witnesses or to postpone the hearing, under article 439 of the code of penal procedure. The applicant allegation that he made oral observations on the respect of article 6-3-d) of the Convention were dismissed by the Court because… it was found that the registrar of the judges of the appeal court of Paris didn’t record any transcript for the hearing of March 16th 2008.

This decision seems ludicrous because only the prosecutor and not the defendant have the right under article 439 to request from the judge the immediate arrest of the witnesses and only the prosecutor have the resources to summon effectively the witnesses (art.560 of the code of penal procedure). In Judgment Mayali v. France (69116/01), the Court found it was the responsibility of the prosecutor to make every effort for the witness for the prosecution to be at the hearing.

Moreover, it was the decision of the judges of the appeal court of Paris to use the testimonies of the prosecution witnesses despite their absence at the hearing, to convict the applicant, that violate article 6-3-d) of the Convention and the only remedy available for the applicant was the appeal to the supreme court (Cour de cassation).

Finally, if the registrar of the appeal court of Paris don’t record any transcript of the hearings, the examination by the defense lawyer of the prosecution witnesses become powerless.

Update :

According to Me Thomas Bidnic, this decision of the Court is going to force defense lawyers to write conclusions to request the arrest of witnesses absent at trial and to dismiss the written testimony of absent witness.

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