You are currently browsing the monthly archive for November 2010.
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.
According to bill 563, the detainees are not notified of the reason of their arrest at any time during their detention on the high seas, in violation of article 5-2 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.
Bill 563 is now back to the Senate for a second reading and should be signed before the end of the year by the French President.
On April 13th 2005 at 14:35, Me France Moulin was arrested and searched in the tribunal of Orleans. She was placed in police custody and transferred to Toulouse to witness a police search of her office. An arrest warrant (“mandat d’amener“) was then issued by the investigating judge for her arrest. She was released from police custody in Toulouse only to be rearrested under the new warrant and detained in a local jail.
On April 18th 2005, she was charged by an investigating judge of the tribunal of Orleans and another judge ordered her detention in local jail pending the investigation. She was released on May 12th 2005 from the local jail of Bourges.
On October 13th 2005, the request of the applicant to have her case dismissed was rejected by the appeal court of Orleans. On March 1st 2006, her appeal to the Cour de cassation failed.
On September 4th 2006, she filed an application with the Court arguing that the searches of her clothes, her office and her bags were a violation of article 8 of the Convention, her detention in police custody for 5 days was a violation of article 5-3, and that the inability to be represented by a lawyer of her choice was a violation of articles 6-1 and 6-3. The applicant is represented by Me Patrice Spinosi who didn’t answer our email for comments.
On January 10th 2008, the application was communicated to the agent of the French government with questions to be answered within 16 weeks.
On November 23rd 2010, the Court found a violation of article 5-3 of the Convention on the ground that the prosecutor of the Republic is not an “officer authorised by law to exercise judicial power“. The Court awarded the applicant €5,000 for damages and €7,500 for legal fees reimbursement.
On May 19th 2004, th
e ECHR found in case R.L M.J.D v. France (44568/98) violations of article 3 and 5-1-c) for the violent and illegal arrest of a couple in their restaurant and their subsequent detention in the police station of the 5th district. The Court also found a violation of the article 5-1-e) for the detention during more than 6 hours of one of the applicant in the infamous “police infirmary“ (infirmerie psychiatrique de la prefecture de police aka IPPP) and violations of article 5-5 for both applicants.
At the 940th meeting of October 11th, 12th 2005, the Committee of Ministers was informed by the delegation of French Republic that since January 12st 2005, the police doctors have the power to order the release of the detainees in the “police infirmary“ . It added that during off-office hours an off-site police doctor can give the order by telephone.
Unfortunately, this statement is untrue. The detainees in the “police infirmary“ are held for 48 hours under the order of the superintendent of a police station (art.L3213-2 of the code of public health). Their release before the end of the 48 hours can only be ordered by a superintendent of a police station in Paris and not by a police doctor.
On May 5th 2010, a new bill on the rights of mental health detainee was introduced at the national assembly. This bill will not make any change to the article L3213-2 of the code of public health. The report on the bill don’t even mention in its case-law the case R.L MJD v. France.
The “police infirmary“ was created in 1872. It detains each year around 2,500 Parisians for up to 48h (source : Paris police department). But it operates clandestinely in blatant disregard of multiple provisions of the code of public health. It is not licensed as an health center regulated by the health authority (Haute Autorite de Sante) so it doesn’t have any authorization to admit mental health patients, deliver prescription drugs, hire doctors, keep medical files or to provide any health care whatsoever.
Furthermore, the “police infirmary“ has an administrative practice to not notify the detainees of the reason of their detention in violation of article 5-2 of the Convention, to not allow them to contact their lawyers or the judge in violation of article 5-4 of the Convention, to force detainees to be striped search and to ingest sedative drugs, to restrain them to their beds, all in violation of article 3 of the Convention and to coerce detainees to non standardized mental status examination and to keep medical records of them, both violations of article 8 of the Convention.
In addition, the Paris police department ordered on average only 40% of the detainees of the “police infirmary“ to be transferred in licensed mental health center (source : Paris police department), acknowledging the fact that 60% of the detention in the “police infirmary“ were detained in violation of article 5-1-e) of the Convention.
In March 2007, and again in June 2010, a bill to definitely close down the “police infirmary” was voted down by the Council of Paris.
The agenda of the 1100th meeting of November 30th 2010 shows that the monitoring of the execution of the judgment R.L M.J.D v. France (section 3) will take place at the 1108th meeting in March 2011.
The delegation of the French Republic didn’t answer our email for comments.
In 1978, Mr. Hassan Boutagni immigrated to France at the age of 11 years old. In 1994, he got married and his 3 children were born in France. He was a legal permanent resident of France and his parents, sisters and brothers are living in France.
On July 11th 2007, he was found guilty by the tribunal of Paris of helping youths to go to Syria to train with the terrorist organization GICM. His sentence was 5 years in jail and a life ban to stay in France.
On September 2th 2008, a deportation order to Morocco was served to the applicant who was detained in the immigration detention center of Palaiseau. On September 5th 2008, the E.C.H.R notified France that a suspension of the deportation order was appropriate until its ruling (art.39). On September 6th 2008, he was ordered to live in the department Manche under a penalty of 3 years of jail (art. L624-4 of immigration code).
The request to cancel the deportation order is still pending at the administrative tribunal of Versailles.
On September 5th 2008, the applicant filed an application with the E.C.H.R arguing that the deportation order to Morocco was a violation of articles 3, 8 the Convention. On November 13th 2008, the application was communicated to the agent of the French government with questions to be answered before 16 weeks. Mr. Hassan Boutagni is represented by Me Denis Solanet (Versailles) who didn’t answer our request for comments.
On June 25th 2010, the French government “promised” by a letter to the Court not execute the deportation order of September 2th 2008 and incidentally the future judgment of the administrative tribunal of Versailles. But the French government didn’t cancel the deportation order.
On November 18th 2010, the E.C.H.R surprisingly didn’t confirm the case-law Daoudi v. France (19576/08) by declaring that the execution of the deportation order will be a violation of article 3 of the Convention. The Court ruled that the issuance of the deportation order was not a violation of article 3 of the Convention because of the “promise” of the French government not to execute it. The Court also invite the applicant to request an interim measure (art.39) if the deportation order to Morocco was executed. No legal fees reimbursement was awarded to the applicant.
On May 4th and 14th 1971, the applicants sold a part of their land of the island of Porquerolles to the French Republic at a highly discounted price. The deed of sale contained a clause authorizing the applicants to extend buildings or build new ones on their remaining land. At that time, Ms. Le Ber wished to build balneotherapy facilities for disabled.
But on 1976 and on 1978, the applicants were denied any permit to build. They filed their cases with the administrative tribunal. After losing their cases in 1981 and 1983, they appealed to the administrative supreme court (conseil d’etat) but their appeals failed in 1984 and 1989 (53591), on the ground that they had to obtain damages from the judicial court.
In 1994 and 1995, the applicants filed their cases to the tribunal of Toulon. After losing their cases in 1999 and 2000, they appealed to the court of Aix-en-Provence but their appeal failed in 2005. They both appealed to the supreme court (cour de cassation). Their appeals failed on December 30th 2006 (05-18538) almost 30 years after the start of their litigation before French courts.
On April 24th 2007 and June 5th 2007, the applicants filed two applications (see below) with the E.C.H.R arguing that the refusal of building permit was a violation of article 1 of protocol no 1 of the Convention. On June 12th 2009, the application was communicated to the agent of the French Republic with questions to be answered before 16 weeks. Ms. Le Ber is represented by Me Laurent Coutelier (Toulon). The family Richet is represented by Me Pierre Brelier (Paris).
On December 17th 2009, the agent of the French Republic submitted her brief . On January 15th 2010, a brief was submitted in response by the lawyers of Ms. Le Ber.
On November 18th 2010, the Court found a violation of article 1 of the protocol no 1 of the Convention. The court ordered France to pay €803,000 of damages to Ms. Le Ber and €712,000 of damages to the family Richet. No legal fees reimbursement were awarded.
On January 13th 2009, the E.C.H.R found in case Taxquet v. Belgium (926/05) [en] a violation of article 6-1 of the Convention on the ground that the ruling of the criminal court (“cour d’assises“) was not motivated. On June 5th 2009, 5 judges of the grand chamber accepted to hear the appeal of Belgium. On September 15th 2009, France submitted a brief (see below). On October 21th 2009, a public hearing was held by the Court [en].
On November 16th 2010 the grand chamber confirmed [en] the finding of the violation of article 6-1 of the Convention.
On September 25th 2008, the bill 4-924 introducing the motivation of ruling of criminal court was submitted to the Senate. On December 10th 2009, the senate voted the law which took effect on January 21th 2010. Under the new law, the defendant can only be condemned if the admissible evidences shows there is no reasonable doubt that the defendant is guilty. The grounds for the guilty ruling and for the sentencing, have also to be stated and an appeal to the supreme court is created.
In France, the rulings of the criminal court are still not motivated. In 2009, there was 3,345 rulings by criminal courts in France. The supreme court (Cour de cassation) ruled that the lack of ground was not a violation of article 6-1 of the Convention (cases 08-86480, 08-88112, 09-82459, 09-81.018, 09-82665, 09-85146, 09-86090, 09-84166, 09-87307, 09-88414).
The French government didn’t introduce any reform of the criminal court. In its threatening observations to the E.C.H.R, the French government argued that the grand chamber couldn’t find a violation of article 6-1, otherwise thousands of criminal court rulings will have to be quashed (34) and that the E.C.H.R didn’t have the capacity to make such decision (33).
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.
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 13th 2000, Mr. Vladlen Katritsch was charged with theft, document forgery and illegal stay in France. He was assisted by a Russian/French interpreter and an appointed lawyer during part of the investigation.
The applicant was then condemned in absentia at the tribunal of first instance of Compiegne and then at the appeal court of Amiens. He requested a retrial and to be assisted by a lawyer and a Russian/French interpreter. On October 23th 2006, the appeal court rejected his requests and refused to postpone the hearing. On October 24th 2007, his appeal to the supreme court (Cour de cassation) failed.
On April 23th 2008, the applicant filed an application with the E.C.H.R arguing that the lack of assistance by a lawyer and an interpreter was a violation of articles 6-1 and 6-3 of the Convention. On July 10th 2009, the application was communicated to the agent of the French government with questions to be answered before 16 weeks. The applicant is represented by Me Ruben Garcia (Paris) who didn’t return our email for comments.
On November 4th 2010, the Court found a violation of articles 6-3-b) and 6-3 -c) of the Convention. The court found no violation of article 6-1-e) because the applicant could speak basic French. The court ordered the French Republic to pay €3,000 of damages and €0 for legal fees.
Under article 626-1 of the code of penal procedure, the applicant can ask for a new trial to a special commission, to redress the violation of article 6 found by the E.C.H.R.
On August 5th 2010, the applicant filed an application with the E.C.H.R arguing that the mandatory membership to Interloire was a violation of article 11-2 of the Convention. The applicant is represented by Ms. Marie-Ange Hegron of the N.G.O CDVI.
On March 7th 2004, Mr. Michel Malon was arrested following his deportation from the Dominican Republic. On March 11th 2004, he was charged for complicity to murder and placed in detention at the local jail of Luynes pending investigation.
On August 5th 2008, the request to be release of the applicant of July 21th 2008 was rejected by the investigation court. On September 26th 2008, the applicant was acquitted of complicity to murder. He was released from the local jail of Luynes the same night. The district attorney appealed his acquittal and a new trial will be taken place in November 2010.
On September 2th 2009, his lawyer was notified that his appeal of the investigation court ruling was rejected by the supreme court.
On March 1st 2010, the applicant filed an application with the E.C.H.R arguing that his detention of 4 years and 6 months pending investigation and awaiting trial was a violation of article 5-3 of the Convention. On June 21th 2010, the application was communicated to the agent for the French Republic with questions to be answered before September 15th 2010. The agent was granted an extension up to November 20th 2010 to answer. The applicant is represented by Me Bruno Rebstock.
In March 2010, a report was published by the general inspector of detention facilities (the national preventive mechanism of OPCAT) on his visit of the local jail of Luynes in January 2009 .
On 7t
h June 1999, the applicant was arrested for attempted murder and placed in police custody. The next day, he was interrogated before he could meet his lawyer and after being put under oath. On 9th June 1999, he was charged with complicity to commit murder and detained in jail pending investigation. On December 8th 2001, he was released on his own recognizance. On March 1st 2002, the charge was changed to aggravated assault.
On October 31th 2002, he was condemned for aggravated assault by the tribunal of Paris to 5 years in jail. On October 26th 2004, his appeal to the court of appeal of Paris failed. The court motivated its ruling with the judgment of the tribunal of Paris. On June 27th 2006, the supreme court (Cour de cassation) rejected his appeal.
On December 26th 2006, the applicant filed an application with the E.C.H.R arguing that to be put under oath was a violation of articles 6-1 and 6-3 of the Convention, that the lack of new motivation of the court of appeal of Paris was a violation of article 6-1 and that his detention of 2 years and 6 months pending investigation was a violation of article 5-3. On March 24th 2009, the application was communicated to the agent for the French Republic. On September 29th 2009, the applicant requested the Court to organize a public hearing on the case. It was rejected by the Court.
On October 14th 2010, the Court ruled that the fact for a suspect to be put under oath in police custody was a violation of the right to remain silent and the right against self-incrimination, so there were violations of articles 6-1 and 6-3. The Court found the other allegations of violation of the Convention to be inadmissible. The applicant was represented by Me Patrice Spinosi who didn’t return our emails for comment.
The Court also reminded that the rights to meet his lawyer prior to any police interrogation, and then to be assisted by his lawyer during these interrogations were both guaranteed by article 6 of the Convention.
Under article 626-1 of the code of criminal procedure, the applicant can now request from a special commission of the judicial supreme court, the organization of a new criminal trial to redress the violations found by the E.C.H.R.
French Polynesia is an overseas country of the French Republic. The coutry has its own president, ministers, national assembly, flag, currency, phone area code and is home to many local languages (Tahitian, Marquisian, Paumotu, Mangarevian) widely spoken by the population and authorized to be used in legal contract and business transaction (art. 57 law 2004-192). French is the language of the French Republic (art. 2 of the Constitution) and the official language of French Polynesia (art. 57 law 2004-192).
On May 13th 2005th a resolution 2005/559 was passed by the national assembly allowing any of his members to use French or any Polynesian languages in their speech. On March 29th 2006, the administrative supreme court (conseil d’etat) ruled that the resolution was canceled.
On September 28th 2006, the applicant filed an application with the E.C.H.R arguing that the forbidden use of Tahitian in the national assembly was a violation of articles 10,11 and 14 of the Convention.
On September 21th 2010, the court confirmed case-law Georges Clerfayt and others v. Belgium (10650/83) of May 17th 1985 and ruled the application inadmissible ratione materiae. The applicant was represented by Me Philippe Temauiarii Neuffer.
On January 20th 2009, a parking ticket was issued for the car parked by the applicant at Montigny-le-Bretonneux. A fine notice was sent to the applicant son’s who registered the car. On March 5th 2009, the applicant requested the district attorney to dismiss the proceeding against his son and open proceeding against him under art. 529-10 1-b) of code of criminal procedure . He also requested to be prosecuted to challenge the legality of the parking ordinance in court.
On June 15th 2009, the district attorney rejected the applicant request. But after a new request was made by the applicant, the district attorney informed him on July 31th 2009 that the case was sent to the court and that he will be served. Surprisingly a notice for repossession for 33 Euros was served for his son on October 28th 2009. On May 21th 2010, a final notice for 40,5 Euros was served. On May 27th 2010, the fine was paid by the applicant for his son.
On July 9th 2010, the applicant and his son filed an application with the E.C.H.R arguing that the refusal of the district attorney to prosecute him in a court was a violation of articles 6-1 and 13 of the Convention and that the condemnation by a district attorney and not a court was a violation of article 6-2. The applicants are advised by Me Philippe Yllouz.
On September 29th 2010, the application was communicated to the French Republic with questions to be answered within 16 weeks.
On the same day, the agency Conseil Constitutionnel ruled in the application 2010-38 QPC that the lack of judicial review of the decision taken by the district attorney was a violation of the Constitution.
On 
July 10th 2001 around 6pm, Mr. Yassine Darraj a juvenile of 16 years old, was stopped in Bois-Colombes by police officers for an identity check. He volunteered his identity but was brought nevertheless to the police station of Asnieres-sur-Seine.
There he was arrested without charge. According to the applicant, he was strangled, beaten in the back, insulted because he refused to be handcuffed to a bench. He was then handcuffed hands behind his back and taken to a small corridor where he was beaten in the head and between the legs by 3 police officers.
Around 7pm30, he was transferred to the emergency room of Hospital AP-HP Beaujon in Clichy-la-garenne. An emergency surgery had to be performed during the night and his right testicle was ablated. In July 2002, the applicant was diagnosed with post-traumatic syndrome disorder (PTSD).
On May 23th 2002, the agency CNDS issued his opinion 2001-121 on the case.
On September 27th 2006, the appeal court of Versailles condemned two police officers for unintentional assault (art. 220-20 of penal code) to a fine of 800 euros each. Under article 222-10 of the penal code, mutilation by police officer is punishable by up to 15 years of jail. On February 22th 2007, the legal aid office of the supreme court (Cour de cassation) rejected the application for an appeal. No disciplinary action were taken against the 2 police officers.
On August 3rd 2007, the applicant filed his application with the E.C.H.R arguing that the assault by the police officers resulting in mutilation and post-traumatic syndrome disorder amounted to torture and was a violation of article 3 of the Convention. He added that his detention at the police station was a violation of article 5-1-d) of the Convention.
On June 17th 2009, the application was communicated to the agent of the French Republic with questions to be answered before 16 weeks. On November 5th 2009, the agent submitted his observation to the Court. On December 21th 2009, the applicant replied. The applicant is represented by Me Eric Charlery (Coblence & Associes).
On November 4th 2010, the Court found that the mutilation of the applicant amounted to an inhumane and degrading treatment and a violation of article 3 of the Convention. The Court didn’t examine the allegation of violation of article 5-1. The court condemned the French Republic to pay €15,000 of damages and €4,000 for legal fees to the applicant.
On April 1st 2004, the Court found also a violation of article 3 of the Convention in a similar case (Rivas v. France (59584/00)). On January 14th 1997, Mr. Giovanni Rivas a juvenile of 17 years old, was ablated 2/3 of his testicle during an emergency surgery, following an assault by a police officer at the main police station of Noumea. On March 2nd 1999, the appeal court of Noumea acquitted the police officer charged with assault on the ground of self-defense.
On September 15th 2010, the Committee of Ministers close the examination of the case Rivas v. France with 35 others case in a single resolution ResDH(2010)122, by stating that the general measures described in infamous resolution CM/ResDH(2009)126 will prevent further violation of article 3 of the Convention.
Amnesty International concluded in 2005 to the effective impunity of police officers in France in case of torture and ill-treatment. The same conclusion was reached in 2009.
On October 19th 2009, Mr. Tisset was arrested for a narcotic offense, by order of an investigating judge. The applicant was not informed of his right to remain silent, and requested immediately to talk to a lawyer. But he was denied any legal assistance during his police custody of 2 days and 17 hours, under a special derogation for all narcotic offenses investigations (art. 63-4 of the code of penal procedure). During this police custody, he made self incriminating statement.
Under art. 63-4 of the code of penal procedure, the suspects of narcotic offenses detained in police custody are not allowed to receive any legal assistance for the first 3 days of their detention. Under the articles 706-88 and 803-2, 803-3 of the code of penal procedure, these suspects can be detained for up to 5 days before being interrogated by a district attorney or an investigating judge.
The applicant filed a motion to dismiss his statement in police custody arguing that the lack of notice of the right to remain silent and of access to legal assistance while in police custody was a violation of articles 6-1 and 6-3 of the Convention. On April 1st 2010, the investigation chamber of the appeal court of Aix-en-Provence rejected the motion to dismiss, on the ground that the E.C.H.R case law regarding other countries was not binding for French courts. The applicant appealed the ruling to the supreme court (Cour de cassation).
On October 19th 2010, the supreme court ruled that the arguments of the appeal court were erroneous, but that the articles 6-1 and 6-3 of the Convention were suspended until July 1st 2011 for a “good administration of justice“. On October 20th 2010, the applicant filed an application with the E.C.H.R. He is represented by Me Patrice Spinosi who didn´t reply our emails for comments.
Update :
On January 121 2011, the applicant was found guilty by the tribunal of Paris. He appealed the verdict. On April 12th 2011, the Court found the application inadmissible on the ground that an appeal was pending and that the applicant could still be acquitted by appeal court. The Court refused to rule on the suspension of the articles 6-1 and 6-3 of the Convention, alleged by the applicant to be a violation of article 1 of the Convention.
It is unclear why the E.C.H.R ruled in less than 5 months on the case and if another application to the E.C.H.R will be admissible as the national remedy has already been exhausted on October 19th 2010.
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).
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
On August 28th 2008, Mr. Herve Eon is arrested by plainclothes police officers while holding a placard during a visit of the French president Sarkozy at Laval. The placard was quoting an infamous sentence (“casse toi pov’ con“) pronounced by the president at the agricultural fair on February 23th 2008. The applicant was nevertheless charged for “offending the president“, a criminal offense punished with a fine of up to 45,000 euros (art. 23 of law of July 24th 1881).
On November 6th 2008, he was condemned to a suspended fine of €30 by the tribunal of first instance of Laval. On March 24th 2009 the appeal court of Angers ruled the same judgment after one of the judge presiding the appeal court, asked the applicant if he would apologize to the president for a reduced sentence. His appeal to the supreme court failed.
On November 5th 2009, Mr. Herve Eon announced that he will fill his case with the E.C.H.R arguing that his condemnation is a violation of article 10 of the Convention. He is represented by Me Dominique Nogueres also vice-president of the NGO LDH. She didn´t reply our emails after first accepting to answer our questions.
On June 25th 2002, the E.C.H.R ruled in case Colombani and others v. France (51279/99) that France violated article 10 of the Convention by condemning Mr. Colombani and Le Monde under the criminal offense of “offending a foreign head of State” (art. 36 of law of July 24th 1881). In the resolution CM/ResDH(2008)8, the committee of ministers closed the examination of the case, after having being informed that the article 36 of law of July 24th 1881 was repealed by article 52 of law 2004-204.
European Court of Human Rights News 