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On April 19th 2010 at 12:15pm, Ms. Hoyos was placed in police custody for 24 hours in Monaco (art.60-4 of the code of penal procedure) under the control of the prosecutor general (art.60-1, 60-3). At 12:30pm, she requested to speak with a lawyer (art.60-9). Despite her request she was interrogated until her bar appointed lawyer arrived. After meeting with her lawyer, she was subject to a body search (art.60-2) and had her bag searched without her lawyer present. Then, she was further interrogated without any legal assistance.
On April 20th 2010 at 12:15pm, she was informed that a 24h warrant of further detention was granted at 11:40am by a judge at the request of the prosecutor general (art.60-4). After meeting with her counsel, she was again interrogated without any legal assistance.
On April 21st 2010 at 11:00am, she was interrogated without her lawyer by the prosecutor general (art.261) who issued an “arrest warrant” for a 4 month pretrial detention (art.162). Then, she was interrogated without her lawyer by an investigative judge (art.166).
On August 25th 2010, Me Regis Bergonzi filed a motion to dismiss to the investigative judge. On September 1st 2010, the investigative judge ruled that he was not authorized by law to rule on the lawfulness of the police custody (art.209). On September 20th 2010, the appeal court confirmed the ruling. On March 30th 2011, the supreme court (cour de revision) refused to rule on the appeal of the Ms. Hoyos.
On July 23rd 2011, she filed an application to the European Court of Human Rights arguing that the control of the police custody by the prosecutor general, and the fact that she was not brought before a judge were violations of article 5-3 of the Convention. She added that the absence of legal assistance during interrogations, of notice of the right to remain silent, the lack of access of her lawyer to her police file, and the purchase of her prosecution file, were violations of articles 6-1 and 6-3 of the Convention. Furthermore, according to her, the refusal of the supreme court to rule was a violation of article 6-1.
On January 23rd 2012, the application was communicated to the representative of Monaco with questions to be answered within 16 weeks. The applicant is represented by Me Regis Bergonzi (Monaco).
On January 23rd 2009, Ms. Kanagaratnam and her 3 minor children M. , G., A. claimed asylum at the passport control of the airport of Brussels (art.50ter law December 15th 1980). They were refused entry and ordered to be deported (art. 52/3 §2) because they claimed asylum without possessing a valid passport and visa (art. 2 §2). An order for their detention in the immigration center “127 bis” (Steenokkerzeel) for 2 months was taken (art. 74/5 §1 2o) because they claimed asylum without possessing a valid passport and visa.
The immigration detention center “127 bis” (Steenokkerzeel) was visited by the CPT (1997 visit report, 2005 visit report), by the Commissioner for Human Rights (2008 visit report CommDH(2009)14) and by the LIBE commission of the European Parliament (2007 visit report see below).
On March 17th 2009, the court CCE (Conseil de contentieux des étrangers) rejected their appeal of the denial of their asylum applications by the Commissioner general for refugees and stateless persons (CGRA) on February 23rd 2009. On March 20th 2009, the police attempted to deport them to the Democratic Republic of Congo.
On March 20th 2009, Ms. Kanagaratnam and her 3 children filed an application with the ECHR on the ground that their deportation to Sri Lanka via DRC will be a violation of article 3 of the Convention. They added that their detention was a violation of article 3 and 5-1-f) of the Convention. The Court requested the suspension of the deportation order (Rules art.39). On the same day, an order of detention of the family for 2 months was taken on the basis that they refused to board the plane to DRC.
On March 23rd 2009, the family filed a 2nd asylum claim. Immediately, another order of detention was taken for 2 months (art. 74/5 §1 2o). During their whole detention, the family made 2 requests to be released (art. 71§2) which were both denied by the appeal court of Brussels. The 2 appeals to the supreme court were also rejected. On May 4th 2009, the family was released by administrative decision. On September 2nd 2009, the family was granted refugee status by administrative decision of the Commissioner general for refugees and stateless persons (CGRA).
On November 25th 2009, the application was communicated to the agent of the Kingdom of Belgium with questions to be answered within 16 weeks. On December 13th 2011, the 2nd section of the Court found a violation of articles 3 and 5-1 for the 3 children on the ground that the immigration center “127 bis” was not tailored for their detention (Judgment Muskhadzhiyeva v. Belgium (41442/07) §63 and §75). It also found that the detention of Ms. Kanagaratnam from March 23rd 2009 to May 4th 2009 was “arbitrary” in violation of article 5-1 because of the length of her detention in a facility not tailored for families. The Court awarded the applicants €46,650 in moral damages and €4,000 in legal fees. The applicants were represented by Me Zouhaier Chihaoui (Brussels).
Mr. Tristan Wibault of the NGO Belgium Committee to Help Refugees (Comité Belge d’Aide aux Réfugiés) found the judgment to be a positive development of the case-law regarding the detention of asylum seekers.
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.
In France in 2011 (5th republic), demonstrations are still regulated by the executive order of October 23rd 1935 of the president of council Pierre Laval (3rd republic), who was executed for “treason” on October 15th 1945 by a firing squad in the notorious prison of Fresnes.
Articles 1 and 2 of the the executive order require organizers of a demonstration to notify the prefect or the mayor of the reason, date, location and itinerary of the demonstration, 3 to 15 days before it should take place. “Traditional” demonstrations are exempted from the requirement. Article 3 of the the executive order allows head of local police, prefect and mayor to “forbid” the demonstration if it may disrupt “public order“. The executive order doesn’t define a demonstration or the minimum number of people required for a demonstration.
Participating in a “forbidden” or a “non notified” demonstration is not an offense under the French penal code. But a prefect, a mayor or any police officer can decide to disperse any demonstration that he thinks may disrupt “public order” (art. 431-3 of the penal code). Once the legal warnings have been made to the demonstrators by bullhorn or by firing a “red rocket” (art. R431-1 of the penal code), it is an offense to continue participating in that demonstration. It carries a penalty of 1 year in jail and a fine of €15,000 (art.431-4 of the penal code).
On January 26th 2011, a demonstration was organized to protest against a meeting at the Automobile Club of Paris in the 8th district of Paris. No dispersion order was taken. On the opposite, 70 peaceful demonstrators were kettled by military riot police (gendarmerie mobile). They were then arrested, searched, detained in a police bus and transported to a police station in the 11th district of Paris before being released without charge. According to the police department of Paris, the peaceful demonstrators were arrested to “verify their identity.” But this arrest is only authorized under art.78-3 of the code of penal procedure if the citizen refuses to disclose his identity upon request. According to witnesses and videos of the events, the demonstrators were not even requested for their identity before being arrested. Once arrested, they were not advised of their rights to a phone call and to have the prosecutor informed of their detention. Upon release, they didn’t receive the mandatory police report stating the reasons of their detention. (art.78-3 of the code of penal procedure).
On May 10th 2011, a gathering was organized in the Luxembourg gardens in the 5th district of Paris to celebrate the executive order of April 27th 1848 (2nd republic) making slavery illegal in French colonies. No dispersion order was taken. But 8 peaceful citizens were kettled by plainclothes police officers. Then they were arrested, searched, detained in a police bus and transported to a police station before being released without charge. Once again, the citizens were not requested for their identity before being arrested and upon release they also didn’t receive the mandatory police report stating the reasons of their detention. On May 26th 2011, a demonstration was organized in place de la Rotonde in the 10th district of Paris to protest against the G-8 meeting in Deauville. No dispersion order was taken. But the peaceful demonstrators were kettled by riot police (CRS) and plainclothes police officers. 95 peaceful demonstrators were then arrested, searched, detained in a police bus (video 2, video 3, video 4) and transported to the police stations of 5th, 11th and 18th district before being released without charge. They were also not advised of their rights and didn’t received the mandatory police report.
On June 19th 2011, a demonstration of “indignés” was organized in front of Notre Dame in the 4th district. No dispersion order was taken. But the peaceful demonstrators were kettled by riot police (CRS), military riot police (gendarmerie mobile) and plainclothes police officers. They were then arrested, searched, detained and transported to police stations before being released without charge (video 1, video 2).
On July 8th 2011, 5 citizens were waiting on the sidewalk of the embassy of Russia in the 16th district. They wanted to submit a 14,000 signatures petition urging Russia to execute ECHR judgment Alekseyev v. Russia (4916/07; 25924/08; 14599/09) by allowing gay-pride demonstration to take place safely in Moscow. No dispersion order was taken. But the 5 citizens including the Russian applicant Mr. Alekseyev were all arrested, detained and transported to the police station of the 4th district. Mr. Alekseyev was released only 8 hours later. On July 9th 2011, peaceful demonstrators supporting Palestine were kettled and arrested (video 2) in the 4th district.
On September 14th 2011, the French minister of interior threatened to use violence if any regular peaceful gathering of Muslims for Friday prayers will take place after September 16th 2011. On September 16th 2011, the police department of Paris expressed its “satisfaction” that Muslims renounced to gather for Friday prayers in the 18th district of Paris. On September 17th 2011, Xavier Dor organized a gathering to “pray” against the opening of an abortion clinic at the hospital Tenon in 10th district. The organizer an extreme right activist, was already condemned to fines and jail for behaviors toward abortion patients, doctors and nurse interfering with patient’s abortion (art. L2223-2 of the health code). Even though the gathering was in front of the hospital, no dispersion order was taken and no demonstrators were arrested. On September 19th 2011, peaceful demonstrators “indignés” were kettled, assaulted by pepper spray, arrested and searched in the 6th district by police officers (video 2,video 3). On September 21st 2011, peaceful demonstrators “indignés” showing their passports and identity cards were kettled, arrested, assaulted, searched, detained in police bus and transported to police stations (video 1, video 2, video 3, video 4). On September 23rd 2011, 11 citizens “indignés” were on the sidewalk, just released from the cells of the “dépôt” (jail) of the tribunal of Paris in the 1st district. A plainclothes police officer asked them illegally to disperse their gathering (see video below).
These examples shows that the police department of Paris have an administrative practice in 2011 to unlawfully detain some peaceful demonstrators to interfere with their exercise of their freedom of peaceful assembly. The unlawful detention by a police officer, is an offense carrying a maximum penalty of 7 years in jail and a 100,000 euros fine (art. 432-4 of the penal code). These interference are not prescribed by law and seems to target peaceful demonstrators on the ground of their opinion, sexual orientation and religion. In the newsletter PPrama of the police department of Paris (no181), an official acknowledged that the demonstrators “indignés” are trying to gather peacefully. But he stated that police officers have to “very reactive to strangle at birth this kind of inclination“.
Therefore the unlawful detention of peaceful demonstrators on discriminatory grounds to interfere with their freedom of peaceful assembly is a violation of articles 5-1 and 11 of the Convention in conjunction with article 14.
On July 28th 2011, Mr. G B.S a legal resident of Italy from India was arrested in the train station of Bordeaux while purchasing a train ticket to Italy. He was detained in police custody on the suspicion of being illegal in France (article L621-2 of the code of migration and asylum). On July 29th 2011, he was placed in the immigration detention facility of Bordeaux awaiting his deportation to Italy.
On July 30th 2011 at 3:45pm, he submitted an “habeas corpus” motion to be immediately release (article R552-17 of the code of migration and asylum) on the ground that his arrest and detention in police custody were illegal following the ECJ judgment El Dridi (C-61/11) on April 28th 2011.
On July 30th 2011 at 6:12pm, Judge Perlant of the tribunal of Bordeaux ordered the police to release Mr. G B.S on the ground that his detention in police custody was illegal. The order was communicated immediately to the district attorney of Bordeaux and the release should have occurred on July 31th 2011 at 12:12am (article L552-6 of the code of migration and asylum). But the police officers of the immigration detention center refused to release Mr. G B.S. On August 1st 2011, Mr. G B.S was forcibly removed to Italy.
On August 4th 2011, Me Emmanuel Barast (Bordeaux) filed a criminal complain for “illegal arrest” (articles 432-4, 432-5 of the penal code) at the district attorney office of Bordeaux. The main suspects seems to be the police officer who placed Mr. G B.S in police custody and in the immigration detention center, the police chief of the detention center and the prosecutor Laplaud (Bordeaux) who controls the detention.
Upon request, Me Emmanuel Barast didn’t inform us why he didn’t summons the 4 main suspects to the misdemeanor court (article 392 of the code of penal procedure) and seek damages in a civil lawsuit.
According to Ms. Petersell of the NGO Cimade, the police officers are still detaining illegally suspects of immigration violation in police custody.
On May 28th 2011, the applicants submitted their case to the European Court of Human Rights arguing that their deportations to n/a will be a violation of articles 2 and 3 of the Convention. They added that the detention of their 7 months old baby in the immigration facility of n/a was a violation of articles 3 and 5-1-f). Finally, they complained that there was no proceeding to rule on the lawfulness of their detention and to release them if their detention was unlawful (habeas corpus), in violation of article 5-4.
The applicants are represented by Me Jerome Canadas (Toulouse) who didn’t return our emails.
n/a : non available on the Hudoc database of the Court.
On July 14th 1998, Mr. Claude Baudoin was arrested for “assault” on a hospital security guard and then detained on mental health ground by the order of the mayor of Bordeaux. On July 16th 1998, the prefect of Gironde ordered his mental health detention. He was detained in the special detention unit (UMD) of the hospital Cadillac.
On July 28th 1998, the applicant submitted a motion to be released. On May 30th 2002, the appeal court of Bordeaux rejected his motion. On February 14th 2004, the president of the supreme court denied the applicant legal aid to appeal the decision.
In several decisions, the administrative tribunal and the administrative appeal court of Bordeaux annulled all the orders of detention from July 16th 1998 to May 17th 2004 which were giving a legal basis for 6 years of detention.
On August 13th 2003, the applicant submitted his case to the European Court of Human Rights arguing that his mental health detention was a violation of article 5-1-e) of the Convention, the absence of information on the ground for detention a violation of article 5-2 and his condition of detention for 6 years in hospital Cadillac was a violation of article 3 of the Convention.
He added that following his arrest he was not brought to a judge in violation of article 5-3 of the Convention, that the requirement to challenge his mental health detention both in administrative and judicial courts was a violation of articles 5-4 and 5-5, that the length of proceedings in administrative court was a violation of article 6-1, that the refusal of legal aid by the supreme court was a violation of article 6-1, that forced medical treatments and seizure of his letters by the hospital were in violation of article 8, keeping him in a detention ruled illegal by the court was also a violation of article 3 and the lack of remedies a violation of article 13. The applicant was represented by Mr Philippe Bernardet a sociology researcher of CNRS.
On July 8th 2005, the motion to be released of the applicant of June 2nd 2004 was rejected by the appeal court of Bordeaux. On February 2006, the motion of October 12th 2005 was again denied.
On September 27th 2007, the Court ruled that most of the allegations of violations of the Convention were inadmissible under articles 35-1 and 35-3 of the Convention on surprising and conflicting grounds. The Court ruled that the applicant was not arrested for “assault” on July 14th 1998 under article 5-1-c) so the allegation of violation of article 5-3 was inadmissible. This means that his arrest didn’t have any legal basis as there is no provision under French law for an arrest on mental health ground (art.5-1-e)) but the Court failed to acknowledge its own allegation of violation of article 5-1 of the Convention. Furthermore the Court ruled that the allegations of violations of article 3 and 8 of the Convention were inadmissible on the ground that the applicant didn’t submit them to the French courts. But the Court didn’t specify which remedies where available to the applicant and which case-law of the French court makes these remedies effective. The Court also found the allegation of violation article 5-5 inadmissible even though it took 7 years for the applicant to have an administrative court annulled the order of detention of July 16th 1998, and that he needed to start another litigation in a civil court to obtain damages following the administrative court ruling. The Court also found inadmissible the allegation of violation of article 5-1-e) for the mental detention of 6 years (except from October 21th 2004 to November 9th 2004) because the administrative court annulled all the orders of detention even though the applicant didn’t receive any damages for this illegal detention.
On November 18th 2010, the Court found a violation of article 5-1-e) of the Convention, on the ground that there was no order of detention from October 21st 2004 to November 9th 2004. The Court also found a violation of article 5-4 on the ground that the applicant didn’t benefit from a speedy and effective remedy . It awarded the applicant €20,000 for damages and €3,000 for his legal fees.
On March 13th 2010, S.C is placed in police custody in Liege and interrogated by police officers on a murder charge. She is not allowed to receive any legal assistance from a lawyer. On March 14th 2010, the applicant is interrogated by an investigating judge of the tribunal without any legal assistance. Belgium law didn’t authorize suspect in custody to receive any legal assistance at this stage of the investigation.
On June 3rd 2010, the investigation chamber of the appeal court of Liege refused to suppress transcripts of these interrogations.
On December 3rd 2010, the applicant submitted his case to the European Court of Human Rights arguing that lack of legal assistance in custody was a violation of articles 5-1, 6-1 and 6-3 of the Convention. The applicant is represented by 3 lawyers of Defenso, Mr. Marc Neve, Ms. Sandra Berbuto and Ms. Estelle Berthe. On May 4th 2011, the application was communicated to the agent of the Belgium government with questions to be answered within 16 weeks.
Mr. Skander Vogt was a Swiss citizen born in 1980. In 1995, he arrived to Switzerland with his sister and both were placed into foster care. In 1996, he was deported from Switzerland to Tunisia. In 1997, he was back to Switzerland.
On January 2001, he was condemned to 20 months in jail for minor offenses. But the judge suspended the sentence and ordered his unlimited detention on the ground of the “mental health” of Mr. Vogt to prevent “endangerment of others” under the notorious article 43 of the Swiss penal code. The applicant was then transferred 19 times between various prisons (EPO, Pöschwies, Thoerberg).
On July 5th 2006, the federal tribunal rejected one of his motion for conditional release.
On November 20th 2006, he submitted an application (see below) to the European Court of Human Rights arguing that his unlimited detention in a prison from June 2001 was in a violation of articles 5 and 4 of protocol 7 of the Convention and that the solitary confinement in “high security wing” and the transfers between prisons were a violation of article 3 of the Convention. He added that the refusal to grant his motion for conditional release were taken in violation of article 6 of the Convention. He is represented by Me Isabelle Coutant-Peyre (Paris).
On January 1st 2007, the article 43 of the penal code was replaced by the new article 64 of the penal code.
On February 27th 2008, his lawyer asked the Court that his application be dealt in priority due to the urgency of the questions raised (art.41 of the rules of the Court).
On March 11th 2010, the applicant is left to die in his burned cell of the prison EPO by laughing wardens and police officers. His lawyer informed the Court that the case is now being pursued by the sister of the applicant.
Today, his application is still pending more than 4 years after being filled and has still not be communicated by the Court to the agent of the Swiss government.
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 May 7th 2009 at 08:50, Mr. Mosashvili was arrested for entering Monaco despite his administrative ban of the country (art. 23 executive order 3153 1964). He was placed in police custody for up to 24 hours under the control of prosecutor general (art. 60-1 of the code of penal procedure).
He was then brought the same day at 14:30 to the prosecutor general (art. 252) who issued an “arrest warrant” for his detention at the local jail (art. 162) for up to 6 days awaiting special speedy trial (art. 399). There is no provision in the code to grant bail to suspect or to motivate the “arrest warrant” for pretrial detention.
On May 8th 2009, he was brought to the tribunal and sentenced to one month in jail. On May 18th 2009, the appeal court rejected his appeal. On November 5th 2009, the applicant lost his appeal to the supreme court.
On May 4th 2010, he filed an application to the European Court of Human Rights arguing that the control of the police custody and the issue of an “arrest warrant” by the prosecutor general were violations of article 5-3 of the Convention. According to the applicant, the prosecutor general in Monaco being under the control of the executive branch, lacks the independence needed to have any “judicial power“.
He also complained of a violation of article 6-1 of the Convention on the ground that the supreme court allows the prosecutor general to submit his brief 4 months late in violation of article 479 and the prosecutor general is responsible of transmitting the briefs to the supreme court without any deadline (art. 485). The applicant was represented by Me Regis Bergonzi (Monaco).
On March 23rd 2011, Mr Philippe Narmino head of the justice department of Monaco revealed that he has been informed by an unknown source that the application was found inadmissible by an unknown Judge of the ECHR in February 2011.
On May 30th 2011, Mr. Erik Fribergh of the registrar of the Court refused to communicate us the decision as well as the name of the Judge who took it. On July 22th 2011, Me Regis Bergonzi refused to communicate us the decision because it was “vague“.
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.
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.
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).
In 1998, Ms. Marie-Claude Patoux was detained in a psychiatric ward following a personal conflict with her ex-doctor T. She became a fugitive after a temporary release at an unknown date. On December 17th 2002, she was condemned for a “premeditated assault with no bodily injury” (art.222-13 of penal code) on T. to 3 years of probation. In 2005, she was arrested again for “premeditated assault with no bodily injury“.
On March 29th 2006, she was arrested and detained in police custody being suspect of “premeditated assault with no bodily injury” on T. on the same day. On March 30th 2006, she was detained by an order of the mayor of Villiers-Saint-Paul under article L3213-2 of the code of public health. This order allows the detention for up to 48h, of patient suffering from mental illness who are “an imminent threat to public safety“. She was transferred to the notorious mental health center “CHI Clermont Oise” . On March 31th 2006, the prefect of Oise ordered her detention for one month in this health center, despite the lack of an eligible medical certificate, in violation of article L3213-1 of the code of public health.
On April 3rd 2006, the husband of the applicant filed a motion at the tribunal of Beauvais to have his wife immediately released . On April 26th 2006, the prefect of Oise ordered the detention of the applicant for 3 months. On May 14th 2006, the applicant became a fugitive for failing to return to the health center after an authorization of the prefect for a 2 days temporary release. On May 19th 2006, the judge denied the habeas corpus motion for release 46 days after the application.
On June 26th 2006, the applicant was condemned by the tribunal of Senlis to 12 months in jail for a “premeditated assault with no bodily injury” in 2005 and a warrant was issued for her arrest. On 30th July 2006, the prefect of Oise ordered the detention of the fugitive applicant for 6 months. On September 13th 2006, the applicant was arrested and detained at the jail of Beauvais pending trial at the appeal court of Amiens.
On January 31th 2007, the appeal court of Amiens ruled on the appeal. On February 5th 2007, the applicant was condemned by the tribunal of Senlis to 9 months in jail for a “premeditated assault with no bodily injury” on March 29th 2006. On October 17th 2007, the appeal court of Amiens condemned the applicant to a lesser sentence of 4 months in jail.
On May 19th 2008, the applicant was released from jail.
On August 21th 2006, the couple Patoux filed an application with the E.C.H.R arguing that the detention in the health center was a violation of articles 5-1-e) and 5-2, that the ruling on the motion for release from the ward was a violation of article 5-4, that the forced medication was a violation of article 8, that the applicant was not brought to a judge after her arrest in violation of article 5-3, and that the detention of the applicant in the jail of Beauvais with no access to health care, was in violation of article 3. They also complained that the rulings on the motion for release from jail pending trial was a violation of article 5-4. On June 30th 2009, the application was communicated to the agent of the French government with questions to be answered before 16 weeks. The applicants were not yet represented.
In June 2009, the national regulatory body for health centers (Haute Autorite de Sante) issued a report on the “CHI Clermont Oise“. It states that the condition of detention are degrading (21b) and that the patient consent into taking medications is not recorded (20a). A review was announced before November 2010. The mental health center didn’t answer our email for comments.
On April 14th 2011, the Court ruled that the wait of the applicant for 46 days before the judge rule on its habeas corpus was a violation of article 5-4 of the Convention. It condemned the French Republic to pay the applicant €5,000 of damages for n and €2,500 for the legal fees.
Surprisingly, the Court found the allegation of violations of article 3 due to the lack of health care in the jail of Beauvais to be inadmissible (art.35-1) because the applicant should have invoke these allegations in her motion to be release from jail pending trial (§58). The 5th section of the Court seems to ignore that there is no provision in the code of penal procedure to be released from detention pending trial, for health reasons or violations of article 3 of the Convention.
On April 1st 2011, the bill 400 was filed at the Senate to introduce a provision allowing judges to suspend detention pending trial on health ground.
The applicant was represented by Me Raphael Mayet (Versailles).
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 July 10th 2001 around 6pm, Mr. Yassine Darraj a juvenile of 16 years old, was stopped in Bois-Colombes by police officers for an identity check. He volunteered his identity but was brought nevertheless to the police station of Asnieres-sur-Seine.
There he was arrested without charge. According to the applicant, he was strangled, beaten in the back, insulted because he refused to be handcuffed to a bench. He was then handcuffed hands behind his back and taken to a small corridor where he was beaten in the head and between the legs by 3 police officers.
Around 7pm30, he was transferred to the emergency room of Hospital AP-HP Beaujon in Clichy-la-garenne. An emergency surgery had to be performed during the night and his right testicle was ablated. In July 2002, the applicant was diagnosed with post-traumatic syndrome disorder (PTSD).
On September 27th 2006, the appeal court of Versailles condemned two police officers for unintentional assault (art. 220-20 of penal code) to a fine of 800 euros each. Under article 222-10 of the penal code, mutilation by police officer is punishable by up to 15 years of jail. On February 22th 2007, the legal aid office of the supreme court (Cour de cassation) rejected the application for an appeal. No disciplinary action were taken against the 2 police officers.
On August 3rd 2007, the applicant filed his application with the E.C.H.R arguing that the assault by the police officers resulting in mutilation and post-traumatic syndrome disorder amounted to torture and was a violation of article 3 of the Convention. He added that his detention at the police station was a violation of article 5-1-d) of the Convention.
On June 17th 2009, the application was communicated to the agent of the French Republic with questions to be answered before 16 weeks. On November 5th 2009, the agent submitted his observation to the Court. On December 21th 2009, the applicant replied. The applicant is represented by Me Eric Charlery (Coblence & Associes).
On November 4th 2010, the Court found that the mutilation of the applicant amounted to an inhumane and degrading treatment and a violation of article 3 of the Convention. The Court didn’t examine the allegation of violation of article 5-1. The court condemned the French Republic to pay €15,000 of damages and €4,000 for legal fees to the applicant.
On April 1st 2004, the Court found also a violation of article 3 of the Convention in a similar case (Rivas v. France (59584/00)). On January 14th 1997, Mr. Giovanni Rivas a juvenile of 17 years old, was ablated 2/3 of his testicle during an emergency surgery, following an assault by a police officer at the main police station of Noumea. On March 2nd 1999, the appeal court of Noumea acquitted the police officer charged with assault on the ground of self-defense.
On September 15th 2010, the Committee of Ministers close the examination of the case Rivas v. France with 35 others case in a single resolution ResDH(2010)122, by stating that the general measures described in infamous resolution CM/ResDH(2009)126 will prevent further violation of article 3 of the Convention.
On December 15th 2002, Ms. Yekaterina Popov arrived in France from Kazakhstan, to seek asylum. On June 10th 2003, her husband Mr. Vladimir Popov joined her. On January 20th 2004, they were denied refugee status by OFPRA. On May 31st 2005, their appeal to the CRR was rejected. On n/a another application for refugee status was made by the family.
On August 27th 2007, the applicants and their two children (five months and 3 years old) were arrested and detained in police custody on an investigation for “illegal stay“. Then they were detained in an hotel in Angers before being transferred to the immigration detention center of Rouen-Oissel.
On September 10th 2007, the applicants filed their application with the ECHR arguing a violation of articles 3, 5-1-f) and 8 of the Convention due to their detention with their children in police custody and in the immigration detention center. In addition they complained of the violation of articles 3 and 8 if they were to be deported to Kazakhstan. On September 12th 2007, the applicants and their children were released. On July 16th 2009, the CRR granted them refugee status.
On October 19th 2009, the case was communicated to the French Republic with questions to be answered within 16 weeks. On January 19th 2012, the Court ruled that the detention of the 2 children was in violation of article 3 on the ground that the immigration detention center of Rouen-Oissel was not adapted to detain children. It found a violation of articles 5-1-f) and 5-4 of the Convention because the detention of minor is not allowed by the French code of migration and asylum. The Court added that the detention of the family was a violation of article 8 of the Convention.
It awarded the family €10,000 for moral damages and €3,000 for legal fees. The applicants were represented by Me Denis Seguin.
Surprisingly, the Court found no violation of article 5-4 for the parents on the ground that a judge ruled on the legality of their detention at the request of the immigration office. Under French code of migration and asylum, the parents were not entitled to take any proceeding by which the lawfulness of their detention shall be decided (habeas corpus). The Court also didn’t rule on the allegations of violations of the Convention during the detention of the family in police custody.