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In 2003 and 2004, the 5 applicants were all arrested on the suspicion to be members of the organization ETA (Euskadi Ta Askatasuna). Within 2 to 4 days of their arrest, they were all suspected by an investigating judge of “membership of a group whose goal is to commit terrorist act” (article 421-2-1 of the penal code) and were ordered to be detained pending investigation.
On January 23th 2007, the investigating judge decided that they were enough evidence against the 5 applicants to go to trial. The 5 applicants were detained while awaiting trial.
On July 25th 2008, the investigation chamber ordered further detention for 6 months of the 5 applicants. On November 26th and December 2th 2008, the supreme court rejected the appeals of the 5 applicants (08-86233, 08-86234, 08-86230, 08-86235 , 08-86236).
On December 17th 2008, the 5 applicants were condemned respectively to 19 years, 10 years, 17 years, 6 years and 10 years in jail.
On May 25th 2009, the 5 applicants filed each an application with the E.C.H.R arguing that their detention of up to almost 6 years, pending investigation and while awaiting trial were a violation of article 5-3 of the Convention, that the fact that the 5 applicants chose to exercise their rights to remain silent justified for the French judges to extend their detention was another violation of article 5-3 and that the detention of the 5 applicants in temporary detention jails (maison d’arret) before and after their trial was a violation of article 8 of the Convention.
On April 21th 2010, the 5 applications (29119/09, 29101/09, 29116/09, 29095/09, 29109/09) were communicated to the agent of the French Republic with questions to be answered before 16 weeks. The applicants are represented by Me Amaia Recarte (Bayonne) who didn’t return our emails.
On July 1st 2008, Human Rights Watch released a report “Preempting Justice” on investigations and trials on terrorism charges in France. In this report, HRW describes the due process to order detention pending investigation “Presumption in Favor of Detention” (p27) and made recommendations to the ministry of Justice to “prevent unjustified lengthy pretrial detention” (p79).
On October 13th 2010, the ministry of Justice introduced Bill 2855 to the National Assembly (House of Representative of the French Republic) to reform police custody to comply with articles 6-1 and 6-3 of the Convention. On November 29th 2010, Human Rights Watch submitted a brief on Bill 2855 to the Legal Affairs Committee of the National Assembly.
Representative Philippe Houillon (UMP) submitted amendments proposals CL108, CL109, CL110, CL111 , CL117 (see below) to the Bill 2855, in order comply with judgment Moulin v. France (37104/06).
The amendments proposals CL108 and CL109 require that police custody are under the control of a judge instead of a prosecutor in compliance with article 5-1-c) of the Convention. The explanatory note of CL108 names this new control a French “habeas corpus“. But CL108 doesn’t comply with article 5-4 of the Convention as there is no provision allowing the lawyer of the detainee to file a release motion with the judge (Zervudacki v. France (73947/01)).
CL110 and CL111 require all detention in police custody over 24 hours to be ordered by a judge.
Lastly, CL117 makes mandatory to bring suspect before a judge if they are not released by the prosecutor following police custody. Unfortunately, this is not in compliance with article 5-3 of the Convention as police custody can last up to 2 to 6 days in France, and the time limit to be brought before a judge is not set.
Moreover, it could be the same judge who ordered the detention over 24 hours and who later control this same order.
Update : On December 15th, the Legal Affairs Committee voted in favor of amendments CL108 and CL109 but against CL111 and CL117. CL110 was removed by the Representative Philippe Houillon.
The general debate on the bill 2855 will start on January 18th 2011.
On September 22nd 2008, Mr. Philippe Creissen a lawyer, was arrested in his home of Saint-Andre (Reunion Island), following a complain of “assault” by his neighbor. He was detained in police custody for 24 hours by order of a police officer (art. 63 of the code of penal procedure). Then the prosecutor of the Republic ordered his detention for an additional 24 hours. But he was finally released without charge after more than 25 hours of police custody.
On September 11th 2009, he was formally charged with “assault” by an investigating judge. On December 24th 2009, the applicant filed a motion to dismiss at the investigation court of the appeal court of Saint-Denis (Reunion Island). On April 27th 2010, the court rejected his motion. On April 28th 2010, the applicant filed an appeal (10-83674) to the Supreme Court (see below).
He argued that his detention in police custody under the control of the prosecutor was a violation of article 5-1 of the Convention (Moulin v. France (37104/06)), that his detention in police custody without being brought before a judge was a violation of article 5-3 of the Convention and that the lack of assistance of a lawyer during his police custody (no access to the police reports and absence during police interrogations) was a violation of articles 6-1 and 6-3 of the Convention (Brusco v. France(1466/07)).
The prosecutor of the Republic submitted a lengthy 39 pages brief in response stating surprisingly that there was no violation of article 5-1 of the Convention on the ground that the prosecutor of the Republic was a “judicial authority” (pages 36,37), that there was no violation of article 5-3 of the Convention on the ground that this article didn’t apply to the first “48 hours of police custody” (pages 36,37) and that there was no violation of articles 6-1 and 6-3 (page 5) because the applicant didn’t request a private meeting of 30 minutes with his lawyer (art.63-4 of the code of penal procedure).
An hearing was held on December 10th 2010. The applicant was represented by Me Patrice Spinosi (full speech).
Update :
On December 15th 2010, the supreme court ruled that the prosecutor was not a “judicial authority“ (judgment Moulin v. France (37104/06)). Nevertheless the court failed to acknowledge the violation of article 5-1-c) on the ground that this article didn’t apply because the appellant was released after 25 hours of police custody.
Surprisingly, the supreme court also ruled that there no violation of articles 6-1 and 6-3 of the Convention on the ground that the applicant waived his rights under the Convention, to his lawyer being present during police interrogation with access to the investigation files (Brusco v. France (1466/07) §45) by… simply not asking to meet his lawyer confidentially for 30 minutes (art. 63-4 of the code of criminal procedure).
On Sfffvdvdvdfvdfvdfvdvdfvdvdvdeptember 22th 2008, Mr. Philippe Creissen was arrested for “assault“. He was detained in police custody for 26 hourscsdfcscsdddddsdsoocdncfdcfecedceOn
On March 28th 2003, Mr. Medhi Chesne was suspected of drug trafficking by an investigating judge. The same day, another judge of the tribunal of Orleans ordered the detention of the applicant for 4 months pending investigation. On April 17th 2003, the court of appeal of Orleans rejected the appeal of the applicant partly on the ground that the applicant refused to confess and that he was “a drug trafficker“.
On July 31th 2003, the court of appeal of Orleans ruled on the detention of the applicant’s partner describing her as “the partner of the main drug trafficker“.
On June 30th 2004, the tribunal of Orleans condemned the applicant to 13 years in jail for drug trafficking. On July 5th 2004, the applicant appealed the ruling. On October 18th 2004, the applicant filed a motion to recuse two of three judges of the appeal court of Orleans (article 668 of the code of penal procedure) on the ground that they participated on the previous rulings on his detention and the one of his partner.
On October 19th 2004, the motion was rejected. On December 7th 2004, the appeal court of Orleans condemned the applicant to 10 years in jail. On November 23th 2005, the supreme court rejected his appeal (case 04-87723).
On July 5th 2006, Mr. Medhi Chesne filed an application with the E.C.H.R arguing the appeal court ruling and the supreme court ruling were in violation of article 6-1. On September 8th 2008, the application was communicated to the agent of the French government.
On April 22th 2010, the E.C.H.R found a violation of article 6-1 for the appeal court ruling. The applicant was represented by Me Thomas Bidnic (Paris) who refused to answer our questions.
Under article 626-1 of the code of penal procedure, the applicant can now request from a special commission, a new trial to redress the violation of article 6 found by the E.C.H.R.
Mr.Nicolas Cocaign is suffering from a severe mental illness (schizophrenia). Following his release from jail in summer 2005, the prefect of Hauts-de-Seine ordered his detention in a mental health center. Nevertheless, he was again detained in jail (cf. Case Patoux v. France).
On January 3rd 2007, he was suspected to have killed one of his cellmate in the overcrowded jail Bonne Nouvelle in Rouen and eat a part of his lung. On January 17th 2007, he was condemned to 45 days disciplinary cell for “violence” to the deceased cellmate, under article D249-1 of the code of penal procedure. On January 22th 2007, the prefect of Yvelines ordered his detention in the mental health center “Centre hospitalier Paul Guiraud“. After 2 weeks of detention in the mental health center, the applicant was transferred to jail of Bois d’Arcy to complete his 40 days of disciplinary detention. He filed an appeal of this disciplinary sentence at the administrative tribunal of Melun.
On October 26th 2007, a court-ordered report by 2 psychiatrists established that the applicant was legally insane at the time of the murder, under article L122-1 of the penal code. Nevertheless, on June 24th 2010, the applicant was condemned to 30 years in prison by the criminal court of Rouen. No appeal were filed.
On July 17th 2007, the applicant filed an application with the E.C.H.R arguing that the disciplinary hearing commission ruled in violation of article 6-1, that the 45 days in a disciplinary cell, the lack of appropriate health care and the solitary confinement since then were violations of article 3, and the lack of remedies following a violation of article 3 in jail was a violation of article 13. On September 28th 2009, the application was communicated to the agent of the French Republic with questions to be answered before 16 weeks. The applicant is represented by Me Fabien Picchiottino (Rouen) who didn’t return our email.
Update :
On November 3rd 2011, the Court found no violation of article 3 of the Convention on the ground that the Court was not informed of the condition of detention in disciplinary cells (81). Surprisingly, the Court didn’t answer the allegation that solitary confinement for more than 4 years was a violation of article 3 of the Convention.
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).
Update :
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.
In 1998, Ms. Marie-Claude Patoux was detained in a psychiatric ward following a personal conflict with her ex-doctor T. She became a fugitive after a temporary release at an unknown date. On December 17th 2002, she was condemned for a “premeditated assault with no bodily injury” (art.222-13 of penal code) on T. to 3 years of probation. In 2005, she was arrested again for “premeditated assault with no bodily injury“.
On March 29th 2006, she was arrested and detained in police custody being suspect of “premeditated assault with no bodily injury” on T. on the same day. On March 30th 2006, she was detained by an order of the mayor of Villiers-Saint-Paul under article L3213-2 of the code of public health. This order allows the detention for up to 48h, of patient suffering from mental illness who are “an imminent threat to public safety“. She was transferred to the notorious mental health center “CHI Clermont Oise” . On March 31th 2006, the prefect of Oise ordered her detention for one month in this health center, despite the lack of an eligible medical certificate, in violation of article L3213-1 of the code of public health.
On April 3rd 2006, the husband of the applicant filed a motion at the tribunal of Beauvais to have his wife immediately released . On April 26th 2006, the prefect of Oise ordered the detention of the applicant for 3 months. On May 14th 2006, the applicant became a fugitive for failing to return to the health center after an authorization of the prefect for a 2 days temporary release. On May 19th 2006, the judge denied the habeas corpus motion for release 46 days after the application.
On June 26th 2006, the applicant was condemned by the tribunal of Senlis to 12 months in jail for a “premeditated assault with no bodily injury” in 2005 and a warrant was issued for her arrest. On 30th July 2006, the prefect of Oise ordered the detention of the fugitive applicant for 6 months. On September 13th 2006, the applicant was arrested and detained at the jail of Beauvais pending trial at the appeal court of Amiens.
On January 31th 2007, the appeal court of Amiens ruled on the appeal. On February 5th 2007, the applicant was condemned by the tribunal of Senlis to 9 months in jail for a “premeditated assault with no bodily injury” on March 29th 2006. On October 17th 2007, the appeal court of Amiens condemned the applicant to a lesser sentence of 4 months in jail.
On May 19th 2008, the applicant was released from jail.
On August 21th 2006, the couple Patoux filed an application with the E.C.H.R arguing that the detention in the health center was a violation of articles 5-1-e) and 5-2, that the ruling on the motion for release from the ward was a violation of article 5-4, that the forced medication was a violation of article 8, that the applicant was not brought to a judge after her arrest in violation of article 5-3, and that the detention of the applicant in the jail of Beauvais with no access to health care, was in violation of article 3. They also complained that the rulings on the motion for release from jail pending trial was a violation of article 5-4. On June 30th 2009, the application was communicated to the agent of the French government with questions to be answered before 16 weeks. The applicants were not yet represented.
In June 2009, the national regulatory body for health centers (Haute Autorite de Sante) issued a report on the “CHI Clermont Oise“. It states that the condition of detention are degrading (21b) and that the patient consent into taking medications is not recorded (20a). A review was announced before November 2010. The mental health center didn’t answer our email for comments.
Update :
On April 14th 2011, the Court ruled that the wait of the applicant for 46 days before the judge rule on its habeas corpus was a violation of article 5-4 of the Convention. It condemned the French Republic to pay the applicant €5,000 of damages for n and €2,500 for the legal fees.
Surprisingly, the Court found the allegation of violations of article 3 due to the lack of health care in the jail of Beauvais to be inadmissible (art.35-1) because the applicant should have invoke these allegations in her motion to be release from jail pending trial (§58). The 5th section of the Court seems to ignore that there is no provision in the code of penal procedure to be released from detention pending trial, for health reasons or violations of article 3 of the Convention.
On April 1st 2011, the bill 400 was filed at the Senate to introduce a provision allowing judges to suspend detention pending trial on health ground.
The applicant was represented by Me Raphael Mayet (Versailles).
From October 3rd 2004 to November 22th 2005, Mr. Luc Lienhardt was detained pending investigation at the jail of Saint-Paul in the second largest city in France, Lyon. On January 19th 2006, a court-ordered report on the conditions of detention was released.
It was revealed that the jail was overcrowded to a critical point. More than 800 detainees were detained in that jail built for 360 detainees. The applicant was detained in a cell with 2 other detainees. The conditions of detention were appalling as shown is this picture taken in a cell with 4 detainees.
During his detention, the applicant suffered “brief psychotic disorder” for 3 months as a result of his detention. No medical treatment or therapy were provided to the applicant.
On March 25th 2008, the applicant filed a criminal complaint to an investigating judge for “torture” and “degrading treatment resulting from housing condition” (art. 225-14 of penal code). On January 20th 2009, the supreme court (Cour de cassation) ruled that article 225-14 of penal code didn’t apply to jails (case 08-82807). On September 18th 2008, the applicant filed a lawsuit at the administrative tribunal of Lyon for compensation for his condition of detention.
On February 17th 2010, Mr. Luc Lienhardt filed an application with the E.C.H.R arguing that his conditions of detention during more than 13 months were a violation of article 3 of the Convention, and that the lack of effective remedy was a violation of article 13 of the Convention. On June 2th 2010, the application was communicated to the agent of the French governement with questions to be answered before 16 weeks. The applicant is represented by Me Sylvain Cormier (Lyon) who didn’t answer our request for information.
The jail of Saint-Paul was definitely closed on May 3rd 2009. It was then revealed that more than 900 detainees were held in this jail in February 2008.
Update :
On December 6th 2010, it was announced that the administrative tribunal of Lyon awarded the applicant €2,000 for his 13 months detention in the horrendous jail Saint-Paul but declined to find a violation of article 3 of the Convention.
On September 13th 2011, the Court ruled the application inadmissible on the ground that the applicant didn’t appeal the judgment of the administrative tribunal of Lyon.
On August 31st 1984, Mr. Abdelhamid Hakkar was arrested in an investigation for the murder of a police officer in Auxerre. On December 8th 1989, the criminal court of Auxerre condemned him to a life sentence with a minimum sentence in jail of 18 years. On December 5th 1990, the supreme court (Court de cassation) failed his appeal (case 90-81761).
On June 27th 1995, the European Commission of Human Rights found in case Hakkar v. France (19033/91) a violation of article 6-1 for the length of the pre-trial investigation, and articles 6-1, 6-3-b), 6-3-c) for the absence of a defense lawyer during the trial at the criminal court of Auxerre.
On August 1st 1996, the applicant was transferred to solitary confinement at the jail of Villefranche-sur-Saône. He was refused his right to call his lawyer. On November 27th 1996, the European Commission of Human Rights ruled the application in case Hakkar v. France (30190/96) inadmissible due to the lack of exhaustion of domestic remedies for his allegation of violation of article 3 of the Convention due to solitary confinement.
On September 17th 1997, the ruling of the ECHR on June 27th 1995 was made public by the Committee of Ministers (DH (97)47) and on February 14th 2001 a final resolution ResDH(2001)4 was taken on the promise of the French Republic that a new trial will be organized in Spring 2001.
On November 30th 2000, the special commission of the supreme court (Cour de cassation) decided to open a new criminal trial in Nanterre following the ruling of the ECHR on June 27th 1995, “suspend” his sentence but didn’t order the cancellation of the ruling of December 8th 1989 and didn’t release the applicant. This was the first case to benefit from the article 89 of new law 2000-516.
On October 8th 2002, the E.C.H.R surprisingly ruled the application in case Hakkar v. France (16164/02) inadmissible because his allegations of violations are “manifestly ill-founded“. The applicant was arguing that his detention for 9 years in solitary confinement was a violation of article 3, his detention from the suspension of his sentence a violation of article 5-1-a) and the prosecution without having the previous ruling canceled a violation of article 4 P7.
On February 26th 2003, the criminal court of Nanterre condemned the applicant to the same sentence of the ruling of the criminal court of Auxerre on December 8th 1989. Following the appeal of the applicant, the criminal court of Versailles condemned the applicant on January 14th 2005 to a life sentence with a minimum sentence in jail of 16 years. On December 7th 2005, the supreme court (Court de cassation) rejected his appeal 05-80988.
On April 7th 2009, the E.C.H.R surprisingly ruled the application in case Hakkar v. France (43580/04) inadmissible. The applicant was arguing that his detention for 20 years was a violation of articles 3 but the Court didn’t respond to the allegation of article 3 without any explanation. He was also arguing that the lack of all the evidences exhibits at the criminal trial in Versailles was a violation of article 6-1 of the Convention but for the Court this was “manifestly ill-founded“.
On November 4th 2010, the appeal court of Toulouse mistakenly denied parole to the applicant a French citizen on the false claim by the prosecutor that the applicant need a work permit from the immigration office. This ruling is the 3rd appeal on the ruling of the tribunal of Tarbes on July 31th 2006 who denied him his right to apply for parole. The first two appeals rulings were quashed by the supreme court on January 16th 2008 (07-81289) and on March 18th 2009 (08-85870).
On November 5th 2010, the applicant began an hunger strike to protest the xenophobic ruling of November 4th 2010.
On November 25th 2010, the applicant filed an application with the E.C.H.R (below) requesting under article 39 the emergency review by the French Republic of the ruling of November 4th 2010 . The applicant is represented by Me Marie-Alix Canu Bernard. On November 26th 2010, he was transferred to an hospital after losing more than 10 kg in his ongoing 22 days hunger strike.
The applicant waited for 21 years for a fair trial on the criminal charges against him(1984-2005). He is now waiting more than 4 years for a fair trial on his parole application (2006-..).
At the hearing of November 4th 2010, the prosecutor advocated also the denial of the parole application because the applicant was still “passionate about his rights” in January 2010. The applicant and the ministry of Justice surely don’t share the same passion for the rule of law.
Update : On December 3rd 2010, the request for interim measure of the applicant under article 39 was denied.
European Court of Human Rights News 