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On August 25th 2000, Ms. Horvath, an Hungarian citizen was interrogated in Dutch and English by Dutch speaking police officers of the Ghent police without the assistance of a sworn interpreter (art.47 bis of the code of criminal instruction). On March 27th 2001, she received a summon in Dutch from the prosecutor of the king of the Belgians.
On February 14th 2002, she was condemned in absentia by the tribunal of Ghent. On November 9th 2004, the court of appeal of Ghent condemned her in absentia.
On March 7th 2005, she was assisted by a Hungarian/Dutch interpreter to give her statement to the court during an appeal hearing (art.31 law June 15th 1935). It is unknown if the she was assisted by the interpreter during her meetings with her lawyer and if the key prosecution files and judgments were translated in Hungarian. On January 17th 2006, the court of appeal of Ghent found her guilty and sentenced her to the same penalty as the judgment of the tribunal of Gent. On September 18th 2006, her appeal to the supreme court (Cour de cassation) was rejected (case no P060298N).
On January 26th 2007, Ms. Horvath filed an application with the ECHR on the ground that she was not “informed promptly, in a language which she understood and in detail, of the nature and cause of the accusation against her” in violation of article 6-1-a) of the Convention. She added that she was interrogated by police officers without an interpreter in violation of article 6-1-e) of the Convention.
On January 24th 2012, Judges Berro-Lefèvre (Monaco), Jočienė (Lithuania), Karakaş (Turkey), Popović (Serbia), Raimondi (Italy), Sajó (Hungary), and Tulkens (Belgium) ruled unanimously her application inadmissible. They found that Ms. Horvath was informed “of the nature and cause of the accusation against her” because she submitted a brief in Dutch to the appeal court of Ghent and didn’t request during the appeal hearing for a translation in Hungarian of the summon.
The 7 Judges of the 2nd section also concluded that the allegation of violation of article 6-1-e) was inadmissible (art.35-1 of the Convention) on the ground that the applicant didn’t complain to the Belgium supreme court about the lack of interpreter during police interrogation. But according to the judgment of the supreme court (case no P060298N 7.8.9), the applicant explicitly raised this issue. Interestingly, the same section of the Court found an allegation of violation of article 6-1-e) admissible even though the applicant didn’t complain to the Turkish supreme court about the lack of interpreter during police interrogation (Judgment Şaman v. Turkey (35292/05) .25).
On October 26th 2010, the directive 2010/64/EU on the right to interpretation and translation in criminal proceedings was published. It establishes for suspect or accused persons, the right to free interpretation during police interrogation (art. 2.1), meetings with lawyer (art. 2.2) and hearings (art.2.1). It also confers them the right to free translation of any detention decision, any charge or indictment, any judgment (art.3.2) and other “essentials documents” (art.3.1) as well as the right to an effective remedy to challenge refusal to provide free translation (art.2.5) or free interpretation (art.3.5).
The Kingdom of Belgium have to bring into force the law necessary to comply with this directive by 27 October 2013 (art.9).
On December 23rd 2008, Mr. I.M was arrested for “unlawful entry” and for “using forged documents” at the railway station of Cerbère in France. During his police custody, his claim for asylum was not recorded by the police officer. He was then detained awaiting trial. On December 26th 2008, he was condemned in a “fast track” trial to one month in jail for “unlawful entry” (art.L621-1 of the code of migration and asylum) despite article 31-1 of the Geneva Convention of 1951. During his detention, another claim for asylum was not recorded.
On January 7th 2009, the local prefect ordered the deportation of Mr. I.M to Sudan. On January 12th 2009, the appeal against his deportation order was rejected by an administrative judge of the administrative tribunal of Montpellier.
On January 16th 2009, he was detained at the immigration detention center of Perpignan awaiting his deportation to Sudan. On January 22th 2009, his claim for asylum was recorded by OFPRA and classified automatically “fast track” (art.L723-1 of the code of migration and asylum). On January 30th 2009, he was interviewed by a case worker of OFPRA and his application was denied the same day. Mr. I.M appealed the decision to the court (CNDA). Nevertheless, on February 11th 2009, Mr. I.M was brought by French police officers to the consulate of Sudan to obtain travel document for his deportation.
On February 16th 2009, Mr. I.M filed an application with the ECHR on the ground that his deportation to Sudan will be a violation of article 3 of the Convention and that the lack of effective remedy a violation of article 13. The same day, the president of the 5th section requested the French Republic to suspend the deportation of the applicant pending a decision of the ECHR (Rule 39). On May 12th 2009, the application was communicated to the agent of the French Republic with questions to be answered within 16 weeks. On December 14th 2010, the application was found admissible. On May 17th 2011, the Court held a public hearing . UNHCR submitted 2 briefs “amicus curiae” (2009, 2011) and intervened during public hearing.
On February 2nd 2012, the 5th section of the ECHR ruled that the allegation of violation of article 3 was inadmissible on the ground that on October 14th 2010 the court (CNDA) granted the applicant refugee status (art.35-3-a). The Court found a violation of articles 13 and 3 of the Convention because the applicant received an unsatisfying legal and interpreting assistance from the duty lawyer (§155) and from the on site NGO Cimade (§145). The Court added that for detained asylum seekers, the automatic classification of their cases as “fast track“, the difficultly to gather evidence, and the shorter delays to claim asylum (5 days) and to appeal their deportation orders (48h) limited severely their access to domestic remedies.
The judgment ordered the French Republic to pay €0 in damages and €4,746.25 in legal fees to the applicant. He was represented by Me Gabriele Summerfield (Perpignan).
On n/a, Ms. Fernandez was informed by a notice of December 15th 2006 that she was suspected of speeding at n/a on the road n/a in n/a on September 13th 2006 at n/a (art. R413-14 of the road code).
On n/a, she had to deposit €180 to get her non-guilty plea registered by the prosecutor (art.530 of the code of penal procedure).
On January 7th 2008, the applicant appeared in court without being able to get access to the prosecution file of evidence of her case. She was not assisted by a lawyer and wasn’t informed when the judgment will be given (art.462 of the code of penal procedure). On n/a, the judge found her guilty of n/a and condemned her to a fine of €135, to administrative cost of €22. Following the condemnation, she automatically lost 1 point out of her 12 points driving license.
On February 18th 2008, she filed an appeal to the supreme court (Cour de cassation) against the judgement. On May 3rd 2010, she was informed that on September 17th 2008 the supreme court ruled her appeal inadmissible (art.605 of the code of penal procedure) for a violation of article 568 of the code of penal.
On October 29th 2010, she filed an application to the ECHR on the ground that the lack of access to the prosecution file of evidence was a violation of article 6-1 of the Convention. She added that the lack of formal notification of the judgment of Montpellier was a violation of article 6-1 and 13, and that the requirement to file in person her appeal to the supreme court, was a violation of article 6,13 and 14 of the Convention. She stated that the prosecutor was not required to file in person his appeal.
On January 17th 2012, the 5th section of the Court ruled her application inadmissible on the surprising ground that because the administrative judge Fernandez was condemned to a fine of €135, “the applicant has not suffered significant disadvantage regarding her right to a fair trial” (art.35-3-b) of the Convention).
On October 6th 2011, the 5th section of the Court ruled in judgment Wagner v. Luxembourg (43490/08) that the allegation of violation of article 6-1 during proceedings following which the applicant lost 4 points out of his 12 points driving license, was admissible (§25).
On March 18th 1997, the Court found in judgment Foucher v. France (22209/93) that the lack of access of the accused to the prosecution file of evidence was a violation of article 6-1 and 6-3 of the Convention. In this case, Mr. Foucher was condemned to a fine of €457 for insults.
The police officers in charge of the investigation didn’t treat the area as a scene of crime. They didn’t collect and safeguard any evidence on the scene and on the body. They didn’t document postmortem changes to establish the location of injury and the time and place of death. No documentation of the social, medical and mental health history of the decedent was made. The police officers didn’t launch a witness appeal. Some pictures of the body were taken and a quick visual examination was made by a family doctor.
Around 6pm, a police officer notified the next of kin of the death of Mr. Dubois. He added that the police investigation on cause of death (art.74 of the code of penal procedure) concluded that his death was a suicide. On September 15th 1998, the prosecutor Dreno closed the investigation without ordering an autopsy, and authorized the release of the body for burial. On September 18th 1998, the funeral took place.
On September 24th 1998, the family of the decedent pressed charges for murder and requested an autopsy. It was the start of a 8 years legal battle which cost the family €25,000. They had to pay a large deposit and hire several lawyers to request that the police conduct a second investigation and to have them perform essential investigative work (DNA testing, hair analysis, autopsy, blood test, reenactment, interrogation of witnesses). Several of their requests were denied (witness appeal, interrogation of witnesses). On August 9th 2006, the investigative judge decided to close the investigation. On October 24th 2006, the appeal court of Pau confirmed his decision. On May 9th 2007, the supreme court (Cour de cassation) rejected the appeal of the family without holding any hearing (art. 567-1-1 of the code of penal procedure).
On November 17th 2007, the family filed an application with the ECHR (see below) arguing that the authorities didn’t act of their own motion for the the second investigation. The applicants added that the 8 years investigation suffered considerable delays and was conducted only to confirm the findings of “suicide” of the first investigation. They alleged a violation of articles 2, 6-1 and 13 of the Convention. The application was not communicated by the Court to the agent of the French Republic.
On July 7th 2011, the grand chamber of the Court stated again in its judgment Al-Skeini and others v. UK (55721/07) : “165. What form of investigation will achieve the purposes of Article 2 may vary (..). However, (..), the authorities must act of their own motion (..). They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (..) 166. (..) The authorities must take the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye-witness testimony, forensic evidence and, where appropriate, an autopsy (..).
On November 15th 2011, the Judges of the 5th section found the application inadmissible on the ground that several requests of the family “were granted within reasonable time” in the 2nd investigation. They added that the 2nd investigation was effective. The Judges didn’t rule on the effectiveness of the first investigation and on the fact that the 2nd investigation was at the initiative of the next of kin.
On 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.
In autumn 1977, Ms. Agnes Roux disappeared. On August 13th 1983, Mr. Maurice Agnelet was suspected of her “murder” by an investigative judge, following the criminal complain of the mother of Ms. Agnes Roux. On April 23th 1986, the investigation chamber of the appeal court of Aix en Provence, confirmed the decision of the investigative judge to close the investigation without charging any suspect. On February 1st 1988, the supreme court (Cour de cassation) rejected the appeal of the mother of Ms. Agnes Roux (case 86-92512).
On December 20th 2000, Mr. Maurice Agnelet was again suspected of her “murder” by another investigative judge. On October 26th 2005, he was charged with “murder” by the investigation chamber. On December 20th 2006, he was acquitted by the criminal court of Nice. But the prosecutor appealed the acquittal (art.380-2 of the code of penal procedure). On October 11th 2007, he was found guilty of “murder” by the criminal court of Aix en Provence and sentenced to 20 years in prison. On October 15th 2008, the supreme court rejected his appeal (case 07-87723).
On December 11th 2008, Mr. Maurice Agnelet filed an application to the ECHR (see below) on the ground that the 20 years investigation and the prosecution after the expiry of the statute of limitation were both in violation of articles 6-1, 6-2 and 13 that the formal charge of October 26th 2005 didn’t contain in detail the nature and cause of the accusation of “murder” (where?, when?, how?) in violation of article 6-3-a) and the 2 questions of the head judge to the jury on a new charge of “complicity to commit murder” on the last day of the trial was another violation of article 6-3-a).
He added that the ruling of the 3 judges of the criminal court on October 9th 2007 which stated that he “lied“, was a violation of article 6-1, that the head judge refused to record the closing argument of the prosecutor on October 9th 2007 in violation of article 6-1, that the head judge had printed a decision where the jury found him guilty before its deliberation in violation of article 6-1 and that the criminal court judgment was groundless in regards to his guilt and to the length of his sentence in violation of article 6-1. On December 13th 2010 and August 17th 2011, the applicant submitted two additional briefs (brief 1, brief 2). The applicant is represented by Me Francois Saint-Pierre (Lyon/Paris).
On September 27th 2011, the 5th section of the Court ruled that the application was only admissible for the lack of ground of the criminal judgment, and communicated the application to the agent of French Republic with questions to be answered within 16 weeks. Surprisingly, the 5th section found that the formal charge of October 26th 2005 was not in violation of article 6-3-a) on the ground that it was a “93 pages brief” that detailed the “attitude of the defendant with the family” of Ms. Agnes Roux.
On April 24th 2001, Mr. Francois Mourmand is arrested and detained pending the Outreau investigation, on the request of the investigative judge Burgaud. In July 2001, he filed a complain for false allegation. On June 9th 2002, he was found dead in his cell of the jail of Douai. The Outreau investigation resulted in a unprecedented miscarriage of justice. Finally, criminal courts acquitted 13 defendants in 2004 and 2005.
On June 11th 2002, an investigation on the cause of the death was opened by an investigative judge. According to the toxicology tests, his death was caused by psychiatric medications. Medical experts found that psychiatric medications were prescribed in unusually high levels and no medical record was found to justify these levels. On January 9th 2007, the sister of the deceased, Ms. Lydia Mourmand filed a complain for “involuntary manslaughter” to the investigative judge. On March 4th 2011, the chamber of investigation of the appeal court of Douai confirmed the decision of the investigative judge to close the case without charging any suspect.
On January 23rd 2007, Ms. Lydia Mourmand and her father filed an application to the ECHR on the ground that the life of Mr. Francois Mourmand in jail was not protected and the investigation on the cause of his death was too slow, both violation of article 2 of the Convention. They added the conditions of his detention and the lack of proper healthcare in jail were a violation of article 3, his detention pending investigation for more than 13 months a violation of article 5, the lack of investigation following his complain a violation of article 6-1, the discrimination for belonging to the traveller community a violation of article 14 and lack of remedy on these violations a violation of article 13. On November 9th 2009, the application was communicated to the agent of the French Republic.
On August 30th 2011, the 5th section of the Court strike out the application on the ground that the French Republic offered a settlement of €20,000 to the applicants who accepted it. The French Republic didn’t recognize any violation of the Convention. On November 3rd 2011, the applicant deplored to have sign the settlement because she is “semi-illiterate“.
On March 10th 1999, Mr Portmann was arrested in a house in Urnäsch as a suspect in an investigation on a bank robbery. Unnamed Swiss police officers handcuffed his hands in his back, shackled his feet, and placed a hood on his entire head.
The suspect was transported, handcuffed, shackled and hooded to the police station of Herisau where he was interrogated in the same condition by an investigative judge. He exercised his right to remain silent during the interrogation and the investigative judge ordered his detention. Then masked police officers removed his hood and requested him to sign a transcript of the interrogation. Upon his refusal, they placed the hood again on his head. He was detained in a basement cell before being transported to the police station of Trugen. There police officers removed his handcuff, shackle and hood.
On April 4th 2006, the applicant press charges by filing a complain to an investigative judge. On May 3rd 2006, the investigative judge closed the investigation on the ground that hooding was “standard police protocol” for suspects considered “dangerous” by police. No witness were interviewed in the investigation. On July 24th 2006, the prosecutor rejected the appeal of the applicant on the ground that hooding was necessary to keep “the anonymity of the police officers“. He refused to examine the allegation of violation of article 3 of the Convention and to award legal aid to the applicant.
On September 19th 2006, Mr. Portmann filed pro se an application to the ECHR on the ground that the condition of his arrest and his detention were a violation of article 3. He added that lack of access to a tribunal and the lack of effective remedy were both a violation of articles 6-1 and 13. On November 3rd 2009, the application was communicated to the agent of the Swiss government.
On October 11th 2011, Judge Jočienė (Lithuania), Judge Björgvinsson (Iceland), Judge Malinverni (Switzerland), Judge Sajó (Hungary), Judge Karakaş (Turkey) and Judge Tulkens (Belgium) of the Court found no violation of article 3 on the surprising grounds that “the applicant could breathe through the hood“, “that he didn’t try to remove it” and that a “police officer was watching him almost at all time“.
In his dissenting opinion, Judge Pinto de Albuquerque (Portugal) found a violation of article 3 of the Convention based on the case-law of human rights courts and bodies (ECHR, CIDH, CAT, CPT, CCPR), on findings of the ICRC, ICRT and U.N special rapporteur on torture and on the facts of the case. He concluded that the hooding of the applicant was “unlawful“, “disproportionate”, “useless“, “objectively degrading” and an “inhumane and degrading treatment“.
On April 26th 2007, the Court found a violation of articles 13 and 3 of the Convention in judgment Gebremedhin v. France (25389/05), on the ground that the emergency appeal of the applicant on the refusal to admit him in France to file his asylum claim, didn’t automatically suspend his removal. The applicant was advised by Me Jean-Eric Malabre (Limoges/Paris) and the NGO Anafe submitted observations amicus curiae to the Court.
On November 21th 2007, article 34 of the law 2007-1631 modified article L213-9 of the immigration and asylum code. It now allows asylum seekers who are denied entry, to appeal this decision to the administrative tribunal. Their removal is suspended for 48 hours or until the decision of the tribunal if an appeal is filed.
According to the report (see below) of the French ombudsman(mediateur de la Republique) and the French NHRI (CNCDH), the new remedy lacks effectiveness as asylum seekers who are denied entry, are detained and have only 48 hours to file their appeal (case Ma. v. France (4920/08) communicated). Moreover they don’t qualify for legal aid (article 3 of law 91-647) and have to finance their own lawyer and their own interpreter to file the appeal. They added that further appeals to the administrative appeal court and to the administrative supreme court (conseil d’etat) don’t suspend the removal (case Se v. France (10085/08) communicated).
Furthermore, citizens who didn’t state their intent to claim asylum before being denied entry, don’t benefit from the suspension of their removal during their appeal, even they fear a violation of article 3 if deported. Ms. Laure Blondel from the NGO Anafe gave us the following example. On February 22th and 23th 2011, the French border police attempted to deport a Senegalese citizen to Libya notwithstanding that an hearing was scheduled on February 24th 2011 on his emergency appeal.
From April 9th to April 18th 2008, the applicant accused of armed robbery, appeared at the criminal court of Pau. Each day of court appearance, the applicant was strip searched naked for up to 8 times and asked by masked guards of the ERIS to bend over and/or squat. When the applicant was bending over and/or squatting, the ERIS guards were doing a visual inspection of his anus. These acts were videotaped by one of the guard. On April 11th 2008, the applicant refused to squat. Nevertheless the masked guards coerced him to squat naked. Later in the day, they forcibly removed his clothes, coerced him to squat naked and forced him to appear in court.
On April 11th 2008, the judge presiding the criminal court ruled that he couldn’t order the ERIS guards to stop these acts. On April 15th 2008, the judge of the administrative tribunal of Pau ruled that only the judges of the criminal court of Pau could order the ERIS guards to stop. On November 14th 2008, the administrative supreme court annulled the ruling of the administrative tribunal of Pau (case 315622) but refused to rule on the violation of article 3 of the Convention.
On October 15th 2008, the applicant submitted his case to the European Court of Human Rights arguing that the multiple strip searches, the bending over, the coerced squatting, the visual inspection of his anus and the videotaping of these acts were violations of articles 3 and 8 of the Convention. He added that the lack of effective remedy was a violation of article 13 and also that these acts prevented him to defend himself during the trial in violation of articles 6-1 and 6-3. On June 16th 2009, the application was communicated to the agent of the French government with questions to be answered within 16 weeks.
On January 20th 2011, the Court found a violation of article 3 of the Convention on the ground that the multiple strip searches, the bending over, the forced squatting. and their videotaping by masked guards were overall a degrading treatment. The Court also found that the applicant didn’t have any effective remedy to obtain redress, in violation of article 13 but forgot to examine the allegations of violations of articles 6-1 and 6-3.
The applicant was represented by Me Patrice Spinosi (Paris) who was not available for comments.
From November 28th 1995 to January 18th 1999, the tax department audited the accounts of the Jehovah’s Witnesses (JW) in France. On February 8th 1996, the minister responsible of the tax department, Mr Alain Lamassoure, publicly supported at the national assembly, the harassment of minority religion by tax (“the tax department, whose actions on several occasions resulted in a certain repression of the activity of sects”) .
On May 14th 1998, the department decided to tax at the rate of 60% the donations from believers of JW for years 1993 to 1996, refusing to tax-exempt them. The department applied also a penalty rate of 80% which resulted that the donations to JW were taxed at rate of..108% and fixed the annual interest at 9% on late payments.
On July 4th 2000, the tribunal of Nanterre rejected the applicant’s claim. On February 2002 the appeal court of Versailles confirmed the ruling. On October 5th 2004, the supreme court rejected the appeal of the applicant (03-15709) on the ground that the Jehovah’s Witnesses were not recognized and authorized by the government as a religion.
On February 24th 2005, the applicant lodged its case (see below) to the Court arguing that the tax rate of 108% on donations to JW was a discrimination in violation of articles 9 and 11 of the Convention with article 14. He added that the tax rate in itself was a violation of article 1 P1 and that the use of a tax to harass a minority religion a violation of articles 18 and 1 P1. The applicant submitted also allegation of violations of articles 6-1 and 13.
On June 17th 2008, the Court found inadmissible all the allegations of violations of the Convention except the one of articles 9 and 14. On September 21st 2010, the Court found admissible the allegation of violation of article 9.
On June 30th 2011, the Court found a violation of article 9 of the Convention on the ground that the tax rate of 108% applied to the donations to the applicant was not foreseeable and therefore not “according to law”. The Court will rule on damages at a later date. The applicant was represented by Me Philippe Goni (Paris).
According to Me Philippe Goni (comments), this is the first time that the Court found that the French Republic violated article 9. He added that this raises serious questions about the “passiveness of the national courts” . He requested that the tax department annulled the whole demand of tax and penalties (more than €50 millions) and reimbursed the amount already seized.
On February 21th 2008, the Court found a violation of article 6-1 of the Convention in judgment Ravon and others v. France (18497/03) on the ground that the applicants couldn’t appeal the tribunal order of searches of their offices and their home. The searches in Marseilles and Paris were at the request of the tax administration (art.L16B of book of tax procedure). The applicants were advised by Me Delphine Ravon (Paris).
On August 4th 2008, article 164 of law 2008-776 modified article L16B and introduced the right to appeal the tribunal order to the president of the appeal court. This right is extended retroactively to almost all tax searches carried since January 1st 2005 even though an appeal to the supreme court was rejected.
According to Me Delphine Ravon (see below), the right to appeal was applied retroactively to prevent tax cases to be dismissed by the administrative tribunals, saving the French government €1.3 billion (years 2006-2007). She believed that this measure will provoke further violations of article 1 of protocol 1 and article 6-1 of the Convention and complained that it is not possible for citizens and companies to reach the judge during the searches.
In fact, the Court strike out cases SAS Arcalia (33088/08), Naco Trading v. France (29377/08) and found inadmissible cases Sarl Comptoir Aixois des Viandes (19863/08), Provitel (29437/08) and Etoc v. France (40954/08) on the ground that the right of appeal was available.. after they filed their cases at the Court. The Court rejected the allegations of the applicants (Provitel v. France (29437/08)) that the appeal is not effective and affirmed that the effectiveness of this new remedy can’t be judged on the first 6 months of its case-law.
Furthermore, the supreme court (Cour de cassation) will have to rule again on cases it had previously rejected and it raises the issue of the impartiality and the composition of the supreme court to respect article 6-1 of the Convention.
On November 29th 2009, 57.5% of the 2,709,287 votes were in favor of the popular initiative to forbid the building of minaret in Switzerland. As a result, article 72 of the Federal Constitution of Switzerland was modified.
Mr. Hafid Ouardiri is a Muslim living in Switzerland who is working as the director of the “Inter-Knowing Foundation“.
On December 15th 2009, the applicant lodged his case to the European Court of Human Rights arguing that to forbid to build a minaret was a violation of articles 9 and 14 of the Convention. He added that the lack of effective remedy was a violation of article 13. On May 11th 2010, the application was communicated to the agent of the Swiss government.
On September 15th 2010, the Swiss government replied and on November 9th 2010 the applicant submitted his observations. Most of the debate is on the two first questions on the quality of victim (art.34) and if all domestic remedies have been exhausted (art.35-1). The Swiss government is even refusing to examine the allegations of violations of articles 9 and 14 of the Convention (.34) and requested the Court to do the same. N.G.O European Center for Law and Justice submitted briefs amicus curiae to the Court as well as N.G.O Open Society Justice Initiative.
The applicant is represented by Me Georges-Albert Dal (Brussels), Me Bertrand Favreau (Bordeaux), Me Pascal Maurer (Geneve), Me Christophe Pettiti (Paris) and Me Pierre de Preux (Geneve).
On June 28th 2011, the Court found the application inadmissible on the ground that the applicant didn’t apply for a permit to build a minaret and therefore couldn’t be considered as a victim under article 34 of the Convention.
In France, more than 30,000 asylum seekers who have the right to be housed in special centers (CADA) are being denied this right in violation of article L348-1 of the social and family code and have to wait on average 13 months before being housed in these centers. Thousands of asylum seekers are then forced to homelessness with or without an allowance of €10,83 per day in violation of articles 13 and 14 of the European directive 2003/9/EC. They survive from food handout from charity organizations and every night have to request by phone a bed in a homeless shelter which are often already full.
In the city of Rennes, dozens of asylum seekers became homeless. On February 25th 2011, the NGO “Droit au Logement” occupied an abandoned government building (280 rue de Fougeres) and opened it to 80 asylum seekers. On March 1st 2011, the prefect obtained without any hearing, a possession order from a judge of tribunal of Rennes (art.808 of the code of civil procedure).
On March 4th 2011, 13 asylum seekers and 5 children, submitted an application for interim measures (art.39 of the rules of the Court) to request the suspension of the possession order of March 1st 2011 and to have the prefect offer them immediately appropriate housing (see below). They are represented by Me Melanie Le Verger (Rennes). She argued that the living conditions of the applicants in France are a violation of article 3 of the Convention (M.S.S. v. Belgium and Greece (30696/09)) and the decision of the judge not to hold hearing and not to communicate to the applicant the legal brief of the prefect are violations of article 6.
On March 10th 2011, the Court requested information on the legal remedies offered to the applicants to have access to decent living conditions and what measures will be taken by the prefect to ensure that the applicants have appropriate living conditions. On April 8th 2011, the agent of the government replied there is no emergency legal remedies available for homeless asylum seekers benefiting from the allowance and that the prefect gives priority in housing to sick individuals and families with babies. He added that on March 16th 2011, 8 applicants on 18 have offers of housing.
On April 29th 2011, Me Melanie Le Verger replied that 7 applicants are still living in the occupied building, 1 applicant is living in a hotel, 2 in CADA, 5 are housed in waiting centers (“pre-CADA”) and 2 have offers for housing in CADA. She also mentioned 14 new applicants and added that due to the refusal of the prefect to offer housing to new asylum seekers, the building was now housing 140 asylum seekers. According to the statistics of the prefect office in Rennes, there is 811 individuals and 93 families with children seeking asylum without any permanent offer of housing (March 30th 2011) and on those only 192 asylum seekers and 22 families are benefiting from the daily allowance.
On May 6th, the Court requested information on the 7 applicants who were still living in the occupied building. On May 25th the agent of the government informed the Court that these applicants were living in a hotel waiting for their housing in CADA. On June 16th 2011, Me Melanie Le Verger informed the Court that on June 15th 2011, the 7 applicants, Mr. A. from Somalia who is physically disabled, Ms. S. from China who is suffering from severe Hepatitis C and her husband and Ms. and Mr. E from China who have 2 babies of one and two years old are all homeless again.
Mr. Christian Pascaud was born on February 8th 1960 in the village of Saint-Emilion. On April 8th 1961, C.P recognized the applicant as his son even though it was public knowledge that W.A was the father.
On October 24th 2000, the applicant start legal proceeding to annul the recognizance of C.P and be recognized by the court as the son of W.A. On November 12th 2001, a court ordered DNA test confirmed that W.A was the father of the applicant with a chance of 99.999%. On March 7th 2002, W.A died.
On September 24th 2006, the appeal court of Bordeaux dismissed all the claims of the applicant. On October 17th 2007, the supreme court (Cour de cassation) rejected his appeal.
On April 15th 2008, the applicant submitted his case to the European Court of Human Rights arguing that the refusal of the court to recognized him as a son of W.A was a violation of articles 8 and 14 of the Convention. He added that the lack of recognizance was also violation of article 1P1 and the lack of remedies a violation of articles 6-1 and 13. The applicant was represented by Me Bertrand Favreaux (Bordeaux).
On September 28th 2009, the application was communicated to the agent of the French government with questions to be answered within 16 weeks. On May 6th 2010, the applicant submitted his observations and requested a public hearing (see below). The request was denied.
On June 16th 2011, the Court found a violation of article 8 of the Convention on the ground that the interest of the applicant to be recognized as a son of W.A outweigh the common interest to legal certainty. It awarded €10,000 for legal fees and €10,000 for moral damages. The amount of material damages will be evaluated at a later date.
On July 13th 2009, Mr. Duteil holder of probationary driver license, was stopped by a police officer. He was issued a citation because he was charged with the contravention of driving under the influence (art. R234-1 of the road code). The citation mentioned : “point (s) driver’s license penalty”. The applicant paid a fine of 90€.
On November 25th 2009, he was informed that following to the payment of the fine 90€, his driver license was invalidated by the Minister of Interior.
Under article L223-1 of the road code, the prepayment of the fine by the suspect is assimilated to a guilty plea in the contravention. Then the Minister of Interior sentences the suspect.
The probationary driver license hold 6 points at issuance. The contravention of driving under the influence (art. R234-1 of the road code) carries 6 points penalty in addition of the fine of 4th category. It may also result in the suspension of the driver license for up to 3 years.
Any driver license which hold 0 points is invalidated. In this case, the driver have to wait 6 months before passing the driving and theory exams, after being registered with a French driving school, notorious for their high tuition fees.
On January 11th 2010, Mr. Duteil filed an application (see below) to the European Court of Human Rights arguing that the lack of information on the penalty if a guilty plea is entered is a violation of articles 6-1 and 6-3-a) of the Convention. Moreover, according to the applicant, the absence of information on the penalty made him renounce illegally to his right to a public hearing by an tribunal in violation of article 6-1 and 13 of the Convention and he can’t appeal the interdiction for him to drive for 6 months which is according to him, an interference in his right to travel freely (art.2-3 protocol no 4). The applicant was represented by Me Frederic Casanova (Toulon).
On April 20th 2010, a chamber presided by Judge Peer Lorenzen found the application to be inadmissible under article 35-3-a) of the Convention (manifestly ill-founded) and stated that the applicant could have ask verbally legal information about the penalty to…the police officer who issued the citation or to the driver license department “within 45 days.” But the applicant was not informed of these rights and nothing indicates that the police officer and the driver license department have the legal capacity to offer such information.
On October 12th 2010, the same chamber found in decision SARL Comptoir aixois des viandes v. France (19863/08) that police officers were responsible during house search of the legal defense of the suspect (“chargés (..) des droits de la défense“).
These two decisions of inadmissibility manifestly ill-motivated raise concern on the quality and the seriousness of the decisions taken by this chamber presided by Judge Peer Lorenzen.
On June 24th 1996, the European Commission of Human Rights ruled the case Ramirez Sanchez v. France (28780/95) was inadmissible (see previous post), based on the “fact” that the abduction was carried out by the Sudanese authority so the Commission was incompetent ratione personae. The Commission also added that the rendition to France by French domestic intelligence agency (DST), was part of a “cooperation” between the French government and the state of Sudan which didn’t amount to a violation of article 5.
On January 10th 2006, the daily newspaper Le Figaro published an interview of an ex-agent of the French domestic intelligence agency on the abduction and rendition of Mr. Ramirez Sanchez. On June 28th 2006, the applicant pressed charges for “abduction” and “sequestration” to the investigating judges of Paris court. On May 3rd 2007, an investigation judge closed the case without opening an investigation. On September 24th 2007, the investigation chamber of the appeal court of Paris confirmed the refusal to open an investigation. On 2008, it was revealed that a CIA agent was also involved in the planning of the abduction and rendition of the applicant.
On February 25th 2009, the applicant filed his case (13019/09) with the European Court. On July 8th 2009, he submitted a brief [fr] arguing a violation of articles 5, 6-1, 13, 17 in conjunction with article 14. The applicant argued that his abduction was carried out by French agents of DST with the help of a local politician with no executive mandate. He added that his abduction and rendition to France were also planned by the CIA and were not the result of a judicial cooperation between States.
On September 28th 2010, case El-Masri (39630/09) was communicated to Macedonia by the 5th section of the Court with detailed questions to be answered within 16 weeks (art.3,5,8,10,13). The case regards the abduction of a German citizen and his rendition to Afghanistan by CIA agents.
Surprisingly, on December 16th 2010, Judge Karel Jungwiert (Czech Republic) of the 5th section of the Court deemed the case Ramirez Sanchez (13019/09) inadmissible. The registrar of the Court informed the applicant that no ground for the decision will be given and that they will destroy all files regarding the case in 1 year (see below). The applicant was represented by Me Coutant-Peyre (Paris).
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 August 15th 1994, Mr. Ramirez Sanchez a citizen of Venezuela was abducted in Sudan and then victim of an extrajudicial rendition to France carried out by officers of the French domestic intelligence agency (DST).
From August 15th 1994 to October 17th 2002, he was placed in solitary confinement and transferred between the 3 infamous jails in the Paris region (La Sante, Fresnes, Fleury-Merogis) by decisions of the administration of the ministry of Justice on unknown ground.
On June 24th 1996, the European Commission of Human Rights ruled in case Ramirez Sanchez v. France (28780/95) that the abduction and the extrajudicial rendition to France were not a violation of articles 3 and 5 of the Convention.
On December 25th 1997, he was condemned to life in prison for the murder on June 27th 1975 in Paris of 2 officers of DST and one agent of an unknown agency, in unclear circumstances. From October 17th 2002 to March 18th 2004, he was transferred to the prison of Saint-Maur and placed in a normal unit.
From March 19th 2004 to January 5th 2006, he was again placed in solitary confinement and transferred again between the 3 infamous jails (La Sante, Fresnes, Fleury-Merogis) because he talked about politics to a journalist. From January 5th 2006, he was transferred to the prison of Clairvaux and placed in a normal unit.
On July 4th 2006, the Grand Chamber of the E.C.H.R ruled by 12 votes against 5 votes, in case Ramirez Sanchez v. France (59450/00), that the solitary confinement the applicant for 8 years (1994-2002) was not a violation of article 3 on the ground that… the applicant would have talk about politics with other inmates (§149). In solitary confinement the applicant was waken up every hour of the night by prison wardens (§95).
The Grand Chamber ruled also that the absence of a domestic remedy to challenge a decision of solitary confinement was a violation of article 13 for the first period (1994-2002). The applicant was represented by Me Isabelle Coutant Peyre (Paris).
For the second period (2004-2006), the Grand Chamber ruled that since the administrative supreme court judgment Remli v. minister of Justice no 252712 on July 30th 2003, the administrative tribunal was a “remedy” to challenge of decision of solitary confinement. It then didn’t find a violation of article 13 and didn’t examine the violation of article 3 because of this remedy (§113). Surprisingly, the Court didn’t examine the effectiveness of the remedy of the administrative tribunal even though the applicant was questioning it in its observations of October 3rd 2005 (§3) and December 30th 2005 (§3).
Mr. Remli was serving in solitary confinement a sentence after an unfair trial (judgment Remli v. France (16839/90)). The administrative supreme court judgment Remli v. minister of Justice no 252712 on July 30th 2003 ruled that the decision of …June 18th 1998 to detain the plaintiff in solitary confinement was “illegal” but it didn’t award him damages and didn’t find a violation of articles 3 or 8 the Convention. No disciplinary or criminal action were taken against the chief of prison following the ruling.
The remedy of the administrative court system is a lengthy one. It can take up to 2 and a half years for the administrative tribunal to rule on the legality of the solitary confinement decision (administrative appeal court of Paris, judgment 09PA05734 on October 14th 2010) which is not suspended pending ruling.
Although article 726-1 of the code of penal procedure (law 2009-1436) allows a detainee to file for an “urgent ruling” within 48 hours on the solitary confinement decision, it is constant case-law that the solitary confinement decision is inadmissible to be ruled within 48 hours (administrative supreme court judgment 337534 on March 22th 2010).
On February 15th 2006, the Commissioner for Human Rights Mr. Alvaro Gil-Robles stated in his report following a visit to French prisons in 2005 : “Prisoners placed in solitary confinement have no effective administrative remedy at their disposal” (§133).
On December 2007, the CPT stated in its report CPT/Inf (2007)44 following a visit to French prisons in autumn 2006, that for the remedy to the administrative tribunal to be effective, the solitary confinement decision should be admissible to be ruled within 48 hours. The CPT also found that detainees were not informed of their rights to appeal the decision (§157).
In September 2009, the 4th edition of the ministry of Justice “handbook for new inmates” didn’t inform about the remedy to the local administrative tribunal on a solitary confinement decision (see below p50).
On April 2010, the French N.G.O OIP stated in its observations to the U.N Committee against Torture : “Remedies against such measures are limited” (p21).
Surprisingly, on November 30th 2010, the Committee of Ministers ruled in its Resolution CM/ResDH(2010)162 that article 726-1 of the code of penal procedure and case-law administrative supreme court judgment Remli v. minister of Justice no 252712 were satisfying as general measures to prevent violation of article 13 of the Convention.
Recommendation Rec(2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies states : However, the remedy required must be “effective” in law as well as in practice; – this notably requires that it be able to prevent the execution of measures which are contrary to the Convention and whose effects are potentially irreversible; (..) the “effectiveness” of a “remedy” within the meaning of Article 13 (..) implies a certain minimum requirement of speediness.
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.
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.
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.
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.
On January 20th 2009, a parking ticket was issued for the car parked by the applicant at Montigny-le-Bretonneux. A fine notice was sent to the applicant son’s who had registered the car. On March 5th 2009, the applicant requested the prosecutor to dismiss the proceeding against his son and open proceeding against him under art. 529-10 1-b) of code of penal procedure. He also requested to be prosecuted to challenge the legality of the parking ordinance in court.
On June 15th 2009, the prosecutor rejected the applicant request. But after a new request was made by the applicant, the prosecutor informed him on July 31th 2009 that the case was sent to the court and that he will be served. But on October 28th 2000, a notice for repossession for €33 was served for his son. On May 21th 2010, a final notice for €40,5 was served. On May 27th 2010, the fine was paid by the applicant for his son.
On July 9th 2010, the applicant and his son filed an application with the E.C.H.R arguing that the refusal of the prosecutor to schedule a hearing in court was a violation of articles 6-1 and 13 of the Convention and that the condemnation by a prosecutor and not a court was a violation of article 6-2. The applicants are advised by Me Philippe Yllouz.
On September 29th 2010, the application was communicated to the agent of the French Republic with questions to be answered within 16 weeks. On the same day, the constitutional council found that the lack of judicial review of the decision taken by the prosecutor was a violation of the Constitution (case 2010-38 QPC).
On July 31th 2008, a court mandated architect Jean-Paul Lanquette submitted his report on the detention conditions in the jail of Clermont-Ferrand. The jail is composed of 19 cells of up to 12 detainees with no closed bathroom or mechanical ventilation.
On December 1st 2008, 3 detainees pressed charges to the local district attorney for “degrading conditions of detention” prohibited by article 225-14 of the penal code and violations of articles D349 to D358 of the code of penal procedure. No investigation was opened and no decision was taken by the local district attorney.
On January 20th 2009, the Cour de cassation ruled that article 225-14 of the penal code couldn’t be applied to detention conditions in jail.
On July 3rd 2009, 6 detainees and the lawyers union SAF filed their application with the E.C.H.R arguing that the detention conditions and the absence of criminal investigation constituted violations of articles 2,3,5 with articles 6-1,13. The applicants are represented by Me Edgard Kiganga-Siroko (Clermont-Ferrand)
On August 31th 2010, the Court found SAF didn’t have the quality of victim (art. 34) and found inadmissible the allegations of violations of articles 2,5,6-1 . The Court communicated the application to the agent of French Republic with questions to be answered before January 5th 2011.
CGLPL the national preventive mechanism of OPCAT, informed of the detention conditions by the lawyer of the applicants refused to visit the jail of Clermont-Ferrand. His office didn’t return our e-mail for comment.
On November 14th 2007, Mrs Rivet a citizen of Cameroon, wife of a French citizen, obtained from the prefecture of Charente a family reunification permit for her two children Rene and Leopoldine living in Cameroon. Leopoldine is suffering from chronic neurological problems. On November 27th 2007, the immigration agency transmitted the permit to the consulate of France in Doula.
On January 23rd 2008, the applicant applied for immigration visas for her two children. On June 6th 2008, the consulate rejected her application. On July 2nd 2008, the decision was notified to the applicant.
On July 15th 2008, the applicant appealed the decision to the appeal agency for visa denial (“commission de recours contre les refus de visa“) which rejected her appeal without notification. On August 25th 2008, she sought an emergency order and appealed the decision of the appeal agency to the administrative supreme court (conseil d’etat). On September 23rd 2008, her emergency order application (case 320022) was rejected on allegation of fraud.
On December 16th 2008, she did a DNA paternity test with her 2 children. The result stated that she was the mother with an accuracy of 99.99%.
On April 9th 2009, the applicant filed their application with the E.C.H.R (see below) arguing that the denial of visas was a discrimination based on national origin, together violations of articles 8 and 14 of the Convention, that the length of the proceedings at conseil d’etat was a violation of article 6-1, and that the emergency order application was not an effective remedy in violation of article 13.
The appeal of the decision of the appeal agency was rejected by the administrative supreme court (conseil d’etat) on April 9th 2009 without a public hearing. The decision didn’t even mention the DNA paternity test.
On July 12th 2010, the case was communicated to the agent of the French Republic, along with questions to be answered before November 3rd 2010. The applicant is represented by Me Jean-Eric Malabre.
In 2006, only 486 appeals of visa denial were made to the conseil d’etat (report of the French Senate). For the same year, around 300,000 visa denial decisions were officially taken. In 2010, N.G.O Cimade published a report on visa denial decisions.
On July 5th 1950, Mr. Raymond Mis and Mr. Gabriel Thiennot were sentenced to 15 years of hard labor for the murder of an employee of a wealthy landowner. They claimed to have been tortured by military police officers (gendarmes) during 6 days until they signed a written “confession“.
In 1954, the French president pardoned them and they were released from prison. They both served more than 7 years in prison.
On November 1st 1988, the protocol no 7 to the Convention for the Protection of Human Rights and Fundamental Freedom entered into force. Article 3 of the protocol no 7 states :
When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
The applicants made 5 unsuccessful attempts to have their conviction reversed. Each time, they were not authorized by a commission to bring their case to the supreme court (Cour de cassation) competent under articles 625 and 626 of the code of penal procedure to reverse the conviction and award damages.
On September 12th 2007, the applicants submitted their case to the E.C.H.R arguing of the violations of articles 6 and 13. Me Jean-Paul Thibault represented both applicants.
On May 12th 2009, Judge Jungwiert (Czech Republic), Judge Berro-Lefevre (Monaco) and Judge Villiger (Liechtenstein) ruled their application inadmissible under article 35-3 of the Convention on the ground that the application was “manifestly ill-founded“.
According to the Court, the proceeding before the commission was not related to the determination of any of the civil rights and obligations of the applicants or of any criminal charge against them.