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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.

The applicant was represented by Me Helene Clement (Paris) and counseled by the NGO Comité Contre l’Esclavage Moderne (CCEM).

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”.

Nevertheless, at the 1078th meeting on March 2nd to 4th 2010,  the deputies of the Committee of Ministers allowed the preparation of a draft final resolution.

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.

 

In the French authorities’ opinion, these provisions, interpreted by the courts in the light of the Convention and of the present judgment, will make it possible in the future to convict those committing acts similar to those at issue in the present case.

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On April 29th 1999, the Grand Chamber of the European Court of Human Rights found in judgment Chassagnou and others v. France (25088/94 ; 28331/95 ; 28443/95) a violation of articles 1 of protocol 1 and article 11 in conjunction with article 14 of the Convention because the applicants were forced to belong to a hunting association (ACCA) and to let armed hunters and hunting dogs from this association enter their land.

The Court ruled a violation of article 14 because large land owners could be exempt to belong to the ACCA of their county and in the county with no ACCA, any landowner could refuse armed hunters to enter his property.

On April 25th 2005, the Committee of Ministers adopted resolution (2005)26 after being informed by the agent of the French Republic that the new article L422-10 of the code of environment will prevent new violation of the Convention as a general measure and satisfy the applicants as an individual measure.

On August 9th 2001, Ms. Simone Lasgrezas who was an applicant in judgment Chassagnou and others v. France (25088/94), requested to withdraw from the ACCA. On October 18th 2001, she was informed by the prefect that she won’t be authorized to withdraw from the ACCA before March 8th 2005 under article L422-18 of the code of environment. On October 31th 2002, the administrative tribunal of Bordeaux rejected her appeal. On June 27th 2006, the administrative appeal court of Bordeaux confirmed the judgment. On November 9th 2007, she lost her appeal (296858) to the administrative supreme court (conseil d’état).

On May 29th 2008, N.G.O ASPAS and the applicant filed an application with the E.C.H.R arguing a violation of article 1 of protocol 1, article 11 in conjunction with article 14 under the same ground as in 1994. On September 23th 2009, the application was communicated to the agent of the French government with questions to be answered with 16 weeks. On January 26th 2010, the agent submitted his answers to which the applicants answered (see below). ASPAS and the applicant are advised by Me Gregory Delhomme (Montelimar).

This application raised serious concern not only about the respect by France of article 46-1 of the Convention in the execution of judgment Chassagnou and others v. France but also on the ability of the department for the execution of judgments to verify the truthfulness of statement made by the agent of the French Republic to the Committee of Ministers.

Update :

On September 22th 2011, the Court found no violation of article 1P1, 11, 14 of the Convention on the ground the applicant could have withdraw her property from the ACCA…. if she had applied earlier in the year.

After a first reading of Bill 563 at the National Assembly on November 25th 2010 (see previous post), the Bill 563 was sent back to the Senate for a second reading.

On November 30th 2010, at the 1100th meeting of the Committee of Ministers, it was announced that France didn’t submit yet any observation regarding the general measures taken following judgment Medvedev (3394/03) on March 29th 2010.

On 7th December 2010, the rapporteur Senator Dulait couldn’t answer the question of the president of the foreign affairs commission on how the release of the detainee will be organized following a judge order, as there is no provision in Bill 563 for this occurrence.

On December 22th 2010, Senator Boutant questioned the compliance of Bill 363 with the judgments Medvedyev v. France (3394/03) and Moulin v. France (37104/06) as the arrest of a sailor is not notified to a judge (art.5-1-c) but to the prosecutor of the Republic and there is no provision for detainee to have access to a lawyer (art.6-1, 6-3). Mr. de Raincourt representing  the defense minister at the hearing, answered that he didn’t want to discuss this mater because it was not “his mission“.

A few minutes later, Bill 563 was passed by the Senate with no amendment. On January 5th 2011, President Sarkozy signed Bill 563 into Law 2011-13.

Law 2011-13 allows in derogation of the code of penal procedure, the arrest and the indefinite incommunicado detention of sailors who were on board ships which are suspected of drug trafficking, attempt of illegal entry in France or piracy. Law 2011-13 creates a French Guantanamo in the high seas.

Following our request for comments on our previous post, Mr. Tobias Thienel a contributor to the Invisible College Blog of the School of Human Rights Research, submitted us the following opinion on Bill 563 (see below).

The court docket of the ECHR contains two pending cases on the arrest and detention in high seas. Case Vassis and others v. France (62736/09) on the detention of the sailors of Junior was filed on October 29th 2009. Case Samatar and others v. France (17301/10) regarding the detention of Somali citizens pending the opening of an investigation on the hostage taking aboard the Ponant, was filed on March 16th 2010. Both have not yet been communicated to France

On October 13th 2010, the ministry of Justice introduced Bill 2855 to the National Assembly (House of Representative of the French Republic) to reform police custody to comply with articles 6-1 and 6-3 of the Convention. On November 29th 2010, Human Rights Watch submitted a brief on Bill 2855 to the Legal Affairs Committee of the National Assembly.

Representative Philippe Houillon (UMP) submitted amendments proposals CL108, CL109, CL110, CL111 , CL117 (see below) to the Bill 2855, in order comply with  judgment Moulin v. France (37104/06).

The amendments proposals CL108 and CL109 require that police custody are under the control of a judge  instead of a prosecutor in compliance with article 5-1-c) of the Convention. The explanatory note of  CL108 names this new control a French “habeas corpus“. But CL108 doesn’t comply with article 5-4 of the Convention as there is no provision allowing the lawyer of the detainee to file a release motion with the judge (Zervudacki v. France (73947/01)).

CL110 and CL111 require all detention in police custody over 24 hours to be ordered by a judge.

Lastly, CL117 makes mandatory to bring suspect before a judge if they are not released by the prosecutor following police custody. Unfortunately, this is not in compliance with article 5-3 of the Convention as police custody can last up to 2  to 6 days in France, and the time limit to be brought before a judge is not set.

Moreover, it could be the same judge who ordered the detention over 24 hours and who later control this same order.

Update : On December 15th, the Legal Affairs Committee voted in favor of amendments CL108 and CL109 but against CL111 and CL117. CL110 was removed by the Representative Philippe Houillon.

The general debate on the bill 2855 will start on January 18th 2011.

On September 22nd 2008, Mr. Philippe Creissen a lawyer, was arrested in his home of Saint-Andre (Reunion Island), following a complain of “assault” by his neighbor. He was detained in police custody for 24 hours by order of a police officer (art. 63 of the code of penal procedure). Then the prosecutor of the Republic ordered his detention for an additional 24 hours. But he was  finally released without charge after more than 25 hours of police custody.

On September 11th 2009, he was formally charged with “assault” by an investigating judge. On December 24th 2009, the applicant filed a motion to dismiss at the investigation court of the appeal court of Saint-Denis (Reunion Island). On April 27th 2010, the court rejected his motion. On April 28th 2010, the applicant filed an appeal (10-83674) to the Supreme Court (see below).

He argued that his detention in police custody under the control of the prosecutor was a violation of article 5-1 of the Convention (Moulin v. France (37104/06)), that his detention in police custody without being brought before a judge was a violation of article 5-3 of the Convention and that the lack of assistance of a lawyer during his police custody (no access to the police reports and absence during police interrogations) was a violation of articles 6-1 and 6-3 of the Convention (Brusco v. France(1466/07)).

The prosecutor of the Republic submitted a lengthy 39 pages brief in response stating surprisingly that there was no violation of article 5-1 of the Convention on the ground that the prosecutor of the Republic was a “judicial authority” (pages 36,37), that there was no violation of article 5-3 of the Convention on the ground that this article didn’t apply to the first “48 hours of police custody” (pages 36,37) and that there was no violation of articles 6-1 and 6-3 (page 5) because the applicant didn’t request a private meeting of 30 minutes with his lawyer (art.63-4 of the code of penal procedure).

An hearing was held on December 10th 2010. The applicant was represented by Me Patrice Spinosi (full speech).

Update :

On December 15th 2010, the supreme court ruled that the prosecutor was not a “judicial authority (judgment Moulin v. France (37104/06)). Nevertheless the court failed to acknowledge the violation of article 5-1-c) on the ground that this article didn’t apply because the appellant was released after 25 hours of police custody.

Surprisingly, the supreme court also ruled that there no violation of articles 6-1 and 6-3 of the Convention on the ground that the applicant waived his rights under the Convention, to his lawyer being present during police interrogation with access to the investigation files (Brusco v. France (1466/07) §45) by… simply not asking to meet his lawyer confidentially for 30 minutes (art. 63-4 of the code of criminal procedure).

On Sfffvdvdvdfvdfvdfvdvdfvdvdvdeptember 22th 2008, Mr. Philippe Creissen was arrested for “assault“. He was detained in police custody for 26 hourscsdfcscsdddddsdsoocdncfdcfecedceOn

On March 29th 2010, the Grand Chamber of the ECHR ruled [en] that the arrest and the detention of the sailors of the cargo ship “Winner” by the French Navy was in violation of article 5-1-c) of the Convention. It was found that their arrest and their detention on the high seas for 13 days was not lawful for lack of legal basis. Controversially, the Grand Chamber didn’t find  a violation of article 5-3 of the Convention by 9 votes against 8 because it was alleged by the French Republic that the detainees “met” an investigating judge within 8 hours of their arrival on French soil.

On November 25th 2010, bill 563 was passed by the National Assembly to introduce provisions in the code of defense in derogation of the code of penal procedure, for the arrest and detention on the high seas, of sailors on board ships which are suspected of drug trafficking, attempt of illegal entry in France or piracy.

According to new article L-1521-12 of the code of defense, no cause is needed for the arrest and detention by the French Navy of sailors and no judge is notified of their arrest.  Furthermore, according to new article L-1521-14, their detention is deemed indefinite until a transfer to an “authority“.

Bill 563 is therefore in violation of articles 5-1-c) of the Convention for a lack of legal basis. The French Republic still didn’t take appropriate general measure to prevent further violation of article 5-1-c) of the Convention, so there is violation of articles 1 and 46-1 of the Convention.

According to bill 563, the detainees are not notified of the reason of their arrest at any time during their detention on the high seas, in violation of article 5-2 of the Convention.

After 2 days of detention, the French Navy may request a judge to authorize further detention. The judge have no right to access the military files regarding the arrest and the detention of the sailors, and no power to order their immediate release to their own ship, the nearest ship or a port.

If the sailors are finally brought to the French Republic, the lawfulness of their arrest and detention on the high seas will be only reviewed by an investigation chamber if their defense lawyers submit a motion to dismiss, within 6 months of their indictment (art. 170, 173-1 of the code of  penal procedure). In the case of the detainees of the “Winner“, the chamber ruled 3 months after the arrival in France. In other recent cases, the investigation chamber ruled 9 months (case “Junior” CC 09-80157), 11 months (case “Ponant” CC 09-8277) and 12 months in (case “Carré d’As” CC 09-87254) after the arrival.

Bill 563 is in violation of article 5-3 of the Convention which requires an automatic, prompt review of the lawfulness of the arrest and the detention (§124,125 Grand Chamber judgment Medvedyev v. France (3394/03)).

Moreover, bill 563 doesn’t create a “habeas corpus” remedy for the detainees on the high seas in violation of article 5-4 of the Convention or an enforceable right to compensation for the victim of unlawful detention in violation of article 5-5 of the Convention.

Finally, bill 563 brings serious concerns about the protection of the detainees on the high seas against violations of article 3 and 8 of the Convention. The high sea detainees are held incommunicado with no access to a lawyer, a doctor, family members, delegates of UNHCR, ICRC and NGOs, and consulate officers (art. 36 of the Convention of Vienna on consular relations). The new article L-1521-13 allows only one mandatory examination by a military doctor within 10 days of a health check by a military nurse, itself within 24 hours of the arrest.

Even worse, new article L-1521-14 allows extra-judicial rendition to any “authory” of any countries. The rendition to countries known to practice death penalty or torture (ex: Somalia) will results in violations of articles 2 and 3 of the Convention and article 3 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The rendition of detainee claiming asylum will be in violation of article 33 of the UN Convention Relating to the Status of Refugees.

Bill 563 is now back to the Senate for a second reading and should be signed before the end of the year by the French President.

On December 3rd 2009, the Committee of Ministers adopted the resolution (2009)126, closing  the examination of the judgment of Selmouni v. France (25803/94).

From November 25th to 29th 1991, the applicant was tortured at a police station in Bobigny during an investigation on drug trafficking. According to him, he was assaulted physically and sexually with a weapon, and threatened with a syringe and a blowlamp because he was exercising his right to remain silent.

On September 16th 1993, the appeal court of Paris sentenced the applicant to 13 years in jail for drug trafficking. On July 1st 1999, after a lengthy investigation, the appeal court of Versailles sentenced 4 police officers for assault to suspended prison terms, and a 5th one, the leader of the group to 3 months in jail and a 15 months suspended prison term. The maximum sentence for torture is now 20 years in prison according to article 222-3 7° of the penal code and life in prison if perjury was also committed according to article 222-2 of the penal code.

On July 28th 1999, the European Court of Human Rights condemned the French Republic for violation of article 3 of the Convention due to the torture of the applicant and violation of article 6-1 of the Convention on account of the length of the proceedings. The French Republic was also condemned to pay €76,220 for personal injury and non-pecuniary damage and €17,281 EUR for legal cost. Mr. Ahmed Selmouni was represented by Me Marie-Alix Canu Bernard who was not available for comments on the resolution adopted.

On December 3rd 2009, the Committee of Ministers found satisfying in its Resolution CM/ResDH(2009)126, the creation in 2001 of a national police ethic committee (C.N.D.S) and the publication of a speech on the judgment Selmouni v. France in an annual academic magazine as general measure to prevent torture in police custody and to guarantee effective and speedy investigation on torture allegation.

Ironically, the national police ethic committee (C.N.D.S) doesn’t respect any of the recommendations of  the Opinion  of the Commissioner for Human Rights concerning independent and effective determination of complaints against police published on March 12th 2009. Furthermore, the self-satisfying speech published on the judgement Selmouni v. France was made by the agent of the French Republic at the ECHR : It was a violent attack against the ECHR and a minimization of the torture endured by the applicant.

In 2005 and 2009, Amnesty International published reports (EUR 21/001/2005EUR 21/003/2009) concluding to the “effective impunity of law enforcement officers in case of shootings, deaths in custody or torture and ill-treatment” in France.

Some might argue that the most effective general measure to prevent torture in police custody is the mandatory audio and video recording of police custody facilities including interrogation rooms and the mandatory presence of  the suspect’s lawyer during police interrogation.

In January 2010, the police officers of the drug investigation team of  the county of Seine-Saint Denis (including Bobigny)  refused to start to allow lawyers to meet their client during the first 72h of the police custody despite multiple requests of the investigating judges.

Update :

Me Marie-Alix Canu Bernard stated in an e-mail that none of the general measure taken including the creation of C.N.D.S, were according to her, effective to prevent torture.

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