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On March 17th 2011, Mr. Joseph Etute detained at the prison of Sandweiler (CPL), received a letter of the Court dated March 9th 2011. The letter was already opened. The applicants complained to the prison officials who apologized. They explained to the Ombudsman of Luxembourg, ECHR ex-Judge Fischbach (1998-2003) that it was their policy to open all large envelope and parcel received by detainees.
Under executive order of March 29th 1989 of unelected Grand Duke Jean, the right to correspondence of detainees is severely restricted. Under article 219, convicted detainees require an authorization of the director of the prison to write to anyone other than their family, lawyers, Luxembourg officials (judges, prosecutors, public servants, congressmen and the head of state) and consulate officers. The content of the letters can only be about family and private matters and cannot contain any “allegation” or “accusation” (art. 221).
The prison officials can routinely open all the letters and read them (art.223) except for the letters to lawyers and Luxembourg officials. The director of the prison can censor and seized any letter which he considers in violation of article 221 (art.224 and 225). The investigating judge can read all letters of detained suspect (art.218) and can order suspension of his right to correspondence except to his lawyer (art.226). Detainees in disciplinarian cells have also their right to correspondence automatically suspended except to their lawyers, Luxembourg officials and consulate officers (art.199)
On April 2nd 2011, Mr. Etute filed an application with the ECHR arguing that the opening by prison officials of his correspondence with the Court was a violation of article 8 of the Convention. On May 6th 2011, the applicant received a letter of the Court dated April 11th 2011. The letter was already opened. On June 27th 2011, he received another letter of the Court already open, dated June 17th 2011.
On December 5th 2011, the Court communicated the application to the agent of Grand Duchy of Luxembourg with questions to be answered within 16 weeks. On December 22th 2011, the minister of Justice Bilgen announced a bill on the rights of detainees. But article 31 on the right of correspondence still doesn’t authorize detainees to have a private correspondence with the European Court of Human Rights (see below).
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 1988, the association Rhino was formed to protect the housing rights of its members who were occupying 3 empty buildings in Geneva. Due to the shortage of affordable housing, the canton of Geneva has an administrative practice to evict unauthorized occupants of empty buildings only if the owners have a building or renovating permit. From 1992 to 2002, the owners entered into negotiation with the association Rhino and its members but failed to reach an agreement on the amount of the rent or the sale price of the building.
On April 4th 2005, the owners filed a request to dissolve the association Rhino at the tribunal of Geneva. On February 9th 2006, the tribunal ordered the dissolution under article 78 of the civil code on the ground that the objective of the association was unlawful. On December 15th 2006, the appeal court of Geneva confirmed the dissolution of Rhino and the seizure of its assets. On May 10th 2007, the federal tribunal rejected the appeal of Rhino (5C.36/2007 and 5P.34/2007). On June 26th 2007, the tribunal of Geneva froze the bank accounts of Rhino and requested the lawyers of Rhino to reimburse their fees to the canton of Geneva under article 57 of the civil code. On July 23rd 2007, the police evicted the occupants of Rhino.
On November 6th 2007, the members of Rhino and Rhino filed an application with the ECHR arguing that the dissolution of the association Rhino was a violation of article 11 of the Convention. On November 24th 2009, the Court communicated the application to the agent of the Swiss confederation which replied with his observations received on March 30th 2010. On May 12th 2010 the applicants submitted their observations.
On October 11th 2011, the 2nd section of the Court found a violation of article 11 of the Convention on the ground that the dissolution was disproportionate and not “necessary in a democratic society“. It awarded the applicants €65,651 for material damages and €21,949 for legal fees. The applicants were represented by Me Pierre Bayenet and Me Nils de Dardel both lawyers in Geneva. Me Pierre Bayenet is “satisfied” with the judgment who confirmed the right of citizens irrespective of their legal situation, “to organize in association to defend their rights“.
Mayotte (Maore) is one of the 4 main islands of the Comoros. Mayotte is still administrated by France despite several UN General Assembly resolutions calling since 1976 for “France withdrawal” (A/RES/31/4, A/RES/37/65, A/RES/49/18). On January 18th 1995, the French police started requiring all citizens of the other islands of the Comoros to obtain a visa to visit Mayotte. The same year, a clandestine facility is opened in Pamandzi to detain migrants awaiting deportation.
On January 19th 2004, article 1 of the executive order DOMA0300056A “legalized” the clandestine facility as the immigration detention center of Pamandzi (Centre de Retention Administratif). Today, the conditions of detention in this center are still by exception not regulated by the French code of migration and asylum.
On April 14th 2008, the French National Commission of the Ethic of Security (CNDS) released a report on his visit of the center (2007-135, 2007-136). It found 3 large immigration cells, 4 showers, 6 restrooms and a police custody cell. The chief of the center admitted to detain up to 220 migrants including children despite an “unofficial maximum capacity” of 60. Migrants were locked into cells and forced to sit, eat and sleep on the floor due to the absence of furniture. There was no access to health care and to legal assistance. On November 20th 2008, the Commissioner for Human Rights Hammarberg “urged that the living conditions of foreigners held in Mayotte be improved immediately” (CommDH(2008)34 VII-11).
On December 17th 2008, Amnesty International stated in a press release that the “conditions in the center amount to inhuman and degrading treatment“. It published a video of the center taken on October 22nd 2008 (see video below). At that date, 41 children and 161 adults were detained in the center.
On July 26th 2010, the French OPCAT NPM (Controleur des lieux de privation de liberte) published his report on its visit of May 2009. It described the 3 immigration cells : one of 60m2 for men , a second of 77m2 for women and children (including babies) and a third of 35m2 as a waiting cell for everyone. The cells were overcrowded, unfurnished, dirty and fetid. The showers had no hot water. The lunch and dinner consisted of a plate of rice with meat. There was no yard for outdoor exercise and access to public phone was restricted. The detention in this center could last up to 5 days. The French NPM concluded that the conditions of detention were “appalling“. On April 2011, the documentary “Controversy islands” of Australian TV SBS highlighted the situation of migrants detained in Mayotte. In November 2011, Mr. Delage, a police union leader found the conditions in the center “inhumane“.
The conditions in the center are in violation with CPT standards (CPT/Inf/E (2002) 1) that states that the immigration detention center should “provide accommodation which is adequately-furnished, clean and in a good state of repair, and which offers sufficient living space for the numbers involved“. (..) “As regards regime activities, they should include outdoor exercise(..)” (p54).
On April 5th 2011, the 1st section of the ECHR ruled in judgment Rahimi v. Greece (8687/08) that the conditions of detention in the immigration center of Pagani were “so serious they violated the very meaning of human dignity“. The 7 Judges added that these conditions “irrespective of the length of the detention” of the applicant, amounted to “degrading treatment in breach of article 3“. The conditions in the center of Pamandzi, similar to the ones of Pagani (see video below) amount also to a violation of article 3 of the Convention.
Since April 2009, the publicly funded Christian organization CIMADE is granted permanent access to the center of Pamandzi to provide legal assistance. More than 60,000 migrants have been detained since then. But according to Ms. Ballestrero (CIMADE Mayotte chapter), her organization didn’t advise any detained migrants to obtain compensation for the violation of article 3 of the Convention.
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 August 27th 2005, Mr. Douet was driving home at night. His car was stopped by military police officers. 2 military police officers beat him up and arrested him. During his police custody, he was examined by a doctor (art.63-3 of the code of penal procedure) who found him “unfit for police custody“, due to his multiple wounds. Informed of the medical certificate, the prosecutor of the tribunal of Clermont-Ferrand ordered his release from police custody but didn’t open any investigation.
On September 5th 2005, Mr Douet pressed criminal charges for “aggravated assault” by filing a complain to the prosecutor. The prosecutor decided to close the investigation without charging any military police officers. On November 22th 2005, he pressed charges again by filing a complain to an investigative judge. On December 12th 2007, the investigative judge charged 2 military police officers.
On July 3rd 2008, the 2 military police officers were acquitted by the tribunal of Clermont-Ferrand. The prosecutor didn’t appeal the acquittal. On April 1st 2009, the appeal court of Riom rejected the civil claim for damages of Mr. Douet On July 8th 2009, the supreme court refused to hear his appeal.
On March 10th 2010, Mr. Douet filed an application to the ECHR on the ground that his beat up by military police officers was a violation of article 3 of the Convention. He added that the fact that he couldn’t appeal the acquittal of the 2 military police officers (art.497 of the code of penal procedure) was a violation of article 13. On September 29th 2011, the application was communicated to the agent of the French Republic with questions to be answered within 16 weeks. The applicant is represented by Me Jean-François Canis (Clermont-Ferrand) who didn’t answer our email for comments.
On January 7th 2004, the minister of state Patrick Leclercq committed upon accession to the Council of Europe, to submit to the Monaco National Council a bill on police custody (Appendix 5, 1-A) “in order to ensure the compatibility of Monaco legislation with the ECHR and its Protocols”. On October 5th 2004, Monaco became a member of the Council of Europe. On November 30th 2005, Monaco ratified the European Convention of Human Rights which entered into force the same day.
On December 26th 2007, the law 1.343 introduced articles 60-1 to 60-12 on police custody in the code of penal procedure. Until then, police custody was not regulated by any law. Under these articles, the detention of a suspect in police custody can only be ordered by a police officer (art.60-2) and is supervised by the prosecutor general (art.60-1) who can release the suspect (art.60-3). The suspect should be brought before the prosecutor general within 24 hours of his arrest (art.399) who can order orally his detention for up to 6 days pending trial (up to 4 days not including weekends and labor holidays).
On November 24th 2011, bill 894 on police custody was submitted to the National Council. The bill 894 introduced a new requirement for the prosecutor general to notify promptly the “freedom judge” of the detention of a suspect in police custody (art.2 of bill 894). But the bill 894 don’t allow the “freedom judge” to get access to the custody record, to control the conditions of detention, to rule on the lawfulness of the police custody and to release the suspect. Worse, the prosecutor general can still order the arrest of a suspect (art.157, art.261) and detain him without any of the legal safeguards of police custody (art.159). The lack of effective control of police and prosecutor general custody by a judge is a violation of article 5-1 of the Convention (judgment Medvedyev v. France (3394/03) §61).
Bill 894 doesn’t introduce any requirement to bring the suspect promptly before a judge to rule on the lawfulness of the police custody and if needed to order his detention pending trial, in violation of article 5-3 of the Convention. The prosecutor general shouldn’t perform these functions because he will prosecute the suspect (judgment Huber v. Switzerland (12794/87) §42).
Article 6 of the bill 894 confirmed the possibility to extend police custody up to 4 days on request of the prosecutor general (art.60-4). Moreover, Bill 894 doesn’t forbid in the same investigation several police and prosecutor general custody of a suspect.
But Bill 894 failed to introduce a “habeas corpus” for suspect in custody in violation of article 5-4 of the Convention (judgment Zervudacki v. France (73947/01) §77). It also didn’t create “an enforceable right to compensation” for the victim of an illegal detention in police or prosecutor general custody. This is a violation of article 5-5 of the Convention.
Therefore, Monaco seems to fail to honor its commitment made in 2004 to ensure the compatibility of his legislation on police custody with the Convention. Monaco National Council will vote on Bill 894 in Spring 2012 after discussion in the law committee.