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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 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.
In 2010, the French preventive mechanism under OPCAT (general controller of the detention facilities) published reports on its visits of the detention facilities in the airports of Bordeaux, Paris-Charles de Gaulle and Strasbourg in 2009. They revealed an administrative practice of the French border police to temporarily detain some passengers arriving on flights from outside the Schengen area, prior to decisions on their entry into France.
The passengers are arrested at the passport control in the terminals but also at preliminary passport checks in the gangways (CommDH(2006)2 §193). These preliminary passport checks seems unlawful as there are not “prescribed by law”.
The passengers are then detained incommunicado in cramped police cells inside the terminals (CPT/Inf (2001)100 §50, CPT/Inf (2003) 40 §22, CPT/Inf (2007)44 §27) or locked in the terminals (CommDH(2006)2 §194, HRW Lost in Transit p16). They are not informed of the reasons of their arrest and of their right to have their consulate notified of their detention (art.36 Vienna Convention on Consular Relations). They are not allowed the assistance of a lawyer (CPT/Inf (2003) 40 §39). The border police don’t record the reasons and the time of these detentions and the ethnicity of the passengers detained. It was alleged that some passengers were locked in a terminal for up to 10 days (CPT/Inf (2003) 40 §40).
On June 25th 1996, the ECHR ruled in judgment Amuur v. France (19776/92) that the detention for 20 days of four asylum seekers in the terminal of the airport Paris-Orly, was not “prescribed by law” (§53) and a violation of article 5-1 of the Convention. On September 25th 1998, the Committee of Ministers found in its resolution DH (98) 307 that the law 92-625 of July 6th 1992 as a general measure, will prevent further violation of article 5-1. But this law only allows the detention of the arriving passengers once they are notified of a refusal of entry into France (articles L-221-1 of the code of migration and asylum).
Therefore, the detention of arriving passengers prior to a decision on entry into France, is not “prescribed by any law” (NGO ANAFE Note June 2010 p3) and a violation of article 5-1 of the Convention. The absence of information on the reason of the detention is a violation of article 5-2. The lack of detention record, of lawyer assistance and access to a consular officer forbid the passenger to challenge the lawfulness of his detention in violation of article 5-4 and to enforce his right to compensation in violation of article 5-5 of the Convention.
On July 25th 2005, the Court ruled in case Siliadin v. France (73316/01) a violation of article 4 of the Convention. The Court found that the French government failed to its positive obligation to obtain the criminal conviction of a couple B. who kept the applicant, a minor from Togo in domestic slavery for several years.
At the 976th meeting of the Committee of Ministers on October 17th to 18th 2006, the French delegation announced that the articles 33 to 37 of law 2003-239 of March 18th 2003 were sufficient as a general measures to avoid further violation of article 4 of the Convention. Theses articles brought minor changes to the wording of articles 225-13 to 225-15-1 of the penal code on degrading working and living conditions.
On May 1st 2008, the Convention on Action against Trafficking in Human Beings of the Council of Europe entered into force in France. But the legislative measures adopted by the French government failed to define “forced labour or services, slavery or practices similar to slavery and servitude” and to establish them as criminal offenses in its penal code. Thereby, the French government failed in its article 225-4-1 of the penal code, to establish as criminal offenses the trafficking in human beings (art.18) and the use of services of a victim of trafficking (art.19).
On December 18th 2009, the French NHRI (CNCDH) released its Opinion on combating the trafficking and exploitation of human beings in France highlighting the failings of the French government to “ensure effective, adequate repression of trafficking and exploitation” and to “guarantee the effective respect of victims’ rights”.
In November 2010, the NGO Comité Contre l’Esclavage Moderne (CCEM) submitted its observations (see below) on the general measure taken by France to the Department for Execution of Judgments under Rule 9-2. Surprisingly, the observations were not published by the Department in violation of Rule 8-4. The observations showed the failings to obtain criminal conviction in cases of trafficking in human beings.
On January 19th 2011, the case C.N and V. v. France (67724/09) was communicated to the agent of the French government with questions on the measures taken by France to prevent violation of article 4 of the Convention. In this case, the prosecution failed again to obtain the criminal conviction of a couple M. who kept the applicants, two minors from Burundi in domestic slavery for several years.
The Department for Execution of Judgments has not yet made public the agenda of the 1108th meeting from March 8th to 10th 2011 in violation of Rule 2-1. It is therefore unknown if any monitoring of the general measures taken by France is going to be discussed.
Update (April 30th 2011) :
The Department for Execution of Judgments has recently released the observations of the NGO Comité Contre l’Esclavage Moderne (CCEM) with the “answer” of the French government who pretends not to have access to the prosecution files of 3 slavery cases.
On October 22th 2008, Mr. Bertrand Rappaz was condemned to more than 5 years in jail for various offenses resulting from his activity as a farmer of marijuana. On March 2010, he was jailed at the prison des Iles in Sion.
A long time non violent and environment activist, he began an hunger strike to protest against the criminalization of the farming of marijuana and its lengthy sentence. Following a deterioration of his health, he made several requests for his sentence to be temporarily suspended for health reason (art. 92 of penal code).
He was temporarily released 2 times, and stopped his hunger strike. Once jailed again, he started a new hunger strike and was hospitalized in the penitentiary wing of the university hospital of Geneva.
On November 10th 2010, a judge ordered Dr. Hans Wolff, head of the penitentiary wing to practice forced feeding on the applicant but the doctor refused to carry it out.
On December 7th 2010, his last request (6B_1022/2010) was rejected by the federal tribunal on the ground that the “medical treatment” that he could receive will be the same whether he is detained or free. The tribunal didn’t take into account that the detained applicant was on hunger strike to protest against his detention and that Dr. Hans Wolff refused to carry out forced feeding. Moreover the ruling didn’t specify what kind of “medical treatment” the applicant could receive.
Swiss doctors and nurses associations already alerted that the forced feeding of a hunger strike patient is against the international ethics standard set by the World Medical Association (Declaration of Malta).
On December 14th 2010, the applicant filed an urgent motion under article 39 [fr], requesting that the Court order the Swiss government to temporarily suspend his sentence pending the decision of the Court. The applicant complained that the refusal to suspend his sentence was a violation of articles 2 and 3 of the Convention.
On December 16th 2010, Judge Christos Rozakis refused to grant the request. Surprisingly, Judge Christos Rozakis officially requested the applicant to stop his hunger strike thereby renouncing to his right to freedom of expression (art.10). Both decisions were unmotivated and the name of the judge is not revealed (see below). The applicant is represented by Me Aba Neeman (Monthey).
Following the decision of the Court, the applicant ceased his hunger strike and filed a complain for damages for his condition of detention in the penitentiary wing.
On January 12th 2010, the ECHR ruled in judgment Gillan and Quiton v. United Kingdom, that the “stop and search” of the 2 applicants, were not “in accordance with the law” because the power to stop and search under section 44 of the terrorist act 2000, was not subject to a requirement of “reasonable suspicions” (§86) and to adequate legal safeguards (§87). Therefore the Court found a violation of article 8 of the Convention and didn’t examine the allegation of violation of article 5.
The article 78-2 of the French code of penal of procedure, allows “stop” with no requirement of “reasonable suspicions”, to protect “public order” or on a road, highway near a land border, in airports, in train stations or in an area defined by an order of the local prosecutor of the Republic. Frisks and “volontary” searches are not allowed by law but widely practiced. The “stop and search” is not officially recorded if the citizen is not brought to the police station. It makes it extremely difficult for an individual to challenge a “stop and search” in an action for damages (art.5-5 and art. 13).
Furthermore, searches of vehicles on the road or in parking lots are allowed under article 78-2-2 of the code of penal procedure with no requirement of “reasonable suspicions” in an area defined by an order of the local prosecutor of the Republic. Police officers can even detain any individual stopped for up to 4 hours under article 78-3 for further verification if the individual can’t or refuse to prove his identity. The detainee is not informed of the legal basis of the “stop” (art.5-2) but can request in case of further verification, the notification of the prosecutor of the Republic and upon release a custody record. Under French law, there is no proceedings by which the lawfulness of this detention could be decided by a court (art.5-4).
In June 2009, the NGO Open Justice Initiative released his report “Profiling Minorities: A Study of Stop-and-Search Practices in Paris“, with findings of discriminatory “stop and search” based on ethnic profiling and made recommendations to the French authorities. No amendment were made to the law.
On June 22th 2010 the Court of Justice of the European Union ruled in cases Melki (C-188/10) and Abdeli (C-189/10) that a section of article 78-2 was in violation of the Schengen Borders Code (EC) 562/2006 due to the lack of requirement of “behaviour and of specific circumstances giving rise to a risk of breach of public order”. No amendment were made to the law.
In conclusion, the French “stop and search” law raises serious concern of compliance with articles 5-1, 5-2, 5-4, 5-5, 8 and 13 of the Convention. The practice of discriminatory “stop and search” could add a violation of article 14 of the Convention to the previous violations.
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.
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).
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 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.
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.
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.
On May 19th 2004, the 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.
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 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.
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 European Court of Human Rights released its provisional annual report for 2009. 57,100 new applications were filed to a chamber of the Court and the total backlog reached 119,298 cases. 6,197 cases were communicated to the agents of 47 countries. 2,395 judgment were pronounced and 33,065 decisions of inadmissibility or strike out were taken.
For the French Republic : 1,589 new applications were filed to a chamber of the Court and the total backlog reached 2,464 cases. 111 cases were communicated to the agent of the government. 33 judgments were pronounced and 1,512 decisions of inadmissibility or strike out were taken. 11 out of 33 judgments found no violation of the Convention.