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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 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.
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 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 September 19th 2006, Mr. Nicolas Vosgien was placed in detention pending investigation, by a judge of the tribunal of Nice. On December 2nd 2008, he was formally charged and subsequently detained awaiting trial.
On December 14th 2010, the instruction chamber of the appeal court of Aix-en-Provence found that the applicant was detained without any valid order since December 3rd 2010 and released immediately the applicant. On January 21th 2011, he was condemned to prison by the tribunal of Nice.
During the 4 years of detention pending investigation and trial, the judge of the tribunal of Nice and the instruction chamber of the appeal court of Aix-en-Provence motivated their order for detention by the fact that the applicant was..guilty.
On January 26th 2011, the applicant submitted his case to the European Court of Human Rights arguing that the detention in local jail for more than 4 years before his trial was a violation of article 5-3 of the Convention and the motivation of the order of detention by his guiltiness was a violation of article 6-2. He is represented by Me Benoit David (Paris). On May 2nd 2011, the application was communicated to the agent of the French government with questions to be answered within 16 weeks.
By the ruling 10-83204 of November 9th 2010, the French supreme court (Cour de cassation) released officially the information that Mr. H, a French scientist was arrested on October 8th 2009 at 6:05 at his home in Vienne (France). He was interrogated by police officers in the absence of his lawyer during a police custody which lasted 91h25. He was then detained under an arrest warrant issued by an investigating judge (art.122 of the code of penal procedure).
According to one of his family member, Mr. H was detained ever since in the notorious prison of Fresnes pending further investigation (visit report of CPT in 2006). His police interrogation is described by the same source as “very very harsh” and from October 2009 to February 2010, Mr. H was placed in the infirmary of the prison (“national public health center of Fresnes“). Since then, he has limited access to health care and has to walk with a cane. Moreover, in January 2011, he was violently attacked by another inmate in the yard. In a letter, Mr. H describes the detention condition in the prison of Fresnes as a “permanent and multiple violations of [the] human rights [of the detainees]” and complains of the cold and humidity of his cell.
The investigation file on Mr. H and the charges he is facing 16 months after his arrest are still secret (art.11 of the code of penal procedure) as the district attorney of the tribunal of Paris, Mr. Jean-Claude Marin never released officially any information on the case. There is no indication that this secret investigation will lead to a trial.
According to his lawyer Me Dominique Beyreuther-Minkov (Paris), the attorney general of the appeal court of Paris, Mr. Francois Falletti even obtained that all the detention hearings of Mr. H are held in secret by an investigation chamber of the appeal court of Paris. This in derogation with article 199 of the code of penal procedure. She added that the rulings by the appeal court of Paris, on the detention of Mr. H, were also secret. This appears to be a violation of article R156 of the code of penal procedure.
The attorney general office of the appeal court of Paris didn’t return our email requesting official information on the cause of the arrest and detention of Mr. H, the charges he is facing, and a copy of the rulings of the appeal court of Paris on his detention pending investigation.
Following the ruling 10-83204 of November 9th 2010, his lawyer stated that she will file an application with the ECHR invoking the violation of article 6 due to the absence of his lawyer during the police interrogation.
Mr. H is also determined to file an application with the ECHR for violations of articles 5-3 and 5-4 of the Convention if his appeals of the detention rulings are rejected by the supreme court.
Update May 3rd 2011 :
On March 15th 2011, the French supreme court rejected his appeal 10-88750 on the decision of the appeal court of Paris of November 19th 2010 to reject his motion to be released pending investigation. Mr. H complained that his detention at the prison of Fresnes amounted to a violation of article 3 of the Convention due to his poor health and the lack of proper health care.
On April 5th 2011, Mr. H filed an application (21489/11) with the ECHR.
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“.
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
In 2003 and 2004, the 5 applicants were all arrested on the suspicion to be members of the organization ETA (Euskadi Ta Askatasuna). Within 2 to 4 days of their arrest, they were all suspected by an investigating judge of “membership of a group whose goal is to commit terrorist act” (article 421-2-1 of the penal code) and were ordered to be detained pending investigation.
On January 23th 2007, the investigating judge decided that they were enough evidence against the 5 applicants to go to trial. The 5 applicants were detained while awaiting trial.
On July 25th 2008, the investigation chamber ordered further detention for 6 months of the 5 applicants. On November 26th and December 2th 2008, the supreme court rejected the appeals of the 5 applicants (08-86233, 08-86234, 08-86230, 08-86235 , 08-86236).
On December 17th 2008, the 5 applicants were condemned respectively to 19 years, 10 years, 17 years, 6 years and 10 years in jail.
On May 25th 2009, the 5 applicants filed each an application with the E.C.H.R arguing that their detention of up to almost 6 years, pending investigation and while awaiting trial were a violation of article 5-3 of the Convention, that the fact that the 5 applicants chose to exercise their rights to remain silent justified for the French judges to extend their detention was another violation of article 5-3 and that the detention of the 5 applicants in temporary detention jails (maison d’arret) before and after their trial was a violation of article 8 of the Convention.
On April 21th 2010, the 5 applications (29119/09, 29101/09, 29116/09, 29095/09, 29109/09) were communicated to the agent of the French Republic with questions to be answered before 16 weeks. The applicants are represented by Me Amaia Recarte (Bayonne) who didn’t return our emails.
On July 1st 2008, Human Rights Watch released a report “Preempting Justice” on investigations and trials on terrorism charges in France. In this report, HRW describes the due process to order detention pending investigation “Presumption in Favor of Detention” (p27) and made recommendations to the ministry of Justice to “prevent unjustified lengthy pretrial detention” (p79).
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 April 13th 2005 at 14:35, Me France Moulin was arrested and searched in the tribunal of Orleans. She was placed in police custody and transferred to Toulouse to witness a police search of her office. An arrest warrant (“mandat d’amener“) was then issued by the investigating judge for her arrest. She was released from police custody in Toulouse only to be rearrested under the new warrant and detained in a local jail.
On April 18th 2005, she was charged by an investigating judge of the tribunal of Orleans and another judge ordered her detention in local jail pending the investigation. She was released on May 12th 2005 from the local jail of Bourges.
On October 13th 2005, the request of the applicant to have her case dismissed was rejected by the appeal court of Orleans. On March 1st 2006, her appeal to the Cour de cassation failed.
On September 4th 2006, she filed an application with the Court arguing that the searches of her clothes, her office and her bags were a violation of article 8 of the Convention, her detention in police custody for 5 days was a violation of article 5-3, and that the inability to be represented by a lawyer of her choice was a violation of articles 6-1 and 6-3. The applicant is represented by Me Patrice Spinosi who didn’t answer our email for comments.
On January 10th 2008, the application was communicated to the agent of the French government with questions to be answered within 16 weeks.
On November 23rd 2010, the Court found a violation of article 5-3 of the Convention on the ground that the prosecutor of the Republic is not an “officer authorised by law to exercise judicial power“. The Court awarded the applicant €5,000 for damages and €7,500 for legal fees reimbursement.
On March 7th 2004, Mr. Michel Malon was arrested following his deportation from the Dominican Republic. On March 11th 2004, he was charged for complicity to murder and placed in detention at the local jail of Luynes pending investigation.
On August 5th 2008, the request to be release of the applicant of July 21th 2008 was rejected by the investigation court. On September 26th 2008, the applicant was acquitted of complicity to murder. He was released from the local jail of Luynes the same night. The district attorney appealed his acquittal and a new trial will be taken place in November 2010.
On September 2th 2009, his lawyer was notified that his appeal of the investigation court ruling was rejected by the supreme court (Cour de cassation).
On March 1st 2010, the applicant filed an application with the E.C.H.R (See below) arguing that his detention of 4 years and 6 months pending investigation and awaiting trial was a violation of article 5-3 of the Convention. On June 21th 2010, the application was communicated to the agent for the French governement with questions to be answered before September 15th 2010. The agent was granted an extension up to November 20th 2010 to answer. The applicant is represented by Me Bruno Rebstock.
In March 2010, a report was published by the controller general of detention facilities (the national preventive mechanism of OPCAT) on his visit of the local jail of Luynes in January 2009.
On February 15th 2011, the Court forced the applicant to accept the proposal of French government of €4,000 to settle the case and strike out the case. The settlement awards the applicant €2,47 per day of detention.
On 7th June 1999, the applicant was arrested for “attempted murder” and placed in police custody. The next day, he was put under oath and interrogated before he could meet his lawyer. On 9th June 1999, he was suspected of complicity to commit murder and detained in jail pending investigation. On December 8th 2001, he was released on his own recognizance. On March 1st 2002, the charge was changed to “aggravated assault“.
On October 31st 2002, he was condemned for “aggravated assault” by the tribunal of Paris to 5 years in jail. On October 26th 2004, his appeal to the court of appeal of Paris failed. The court motivated its ruling with the judgment of the tribunal of Paris. On June 27th 2006, the supreme court (Cour de cassation) rejected his appeal.
On December 26th 2006, the applicant lodged an application with the Court arguing that to be put under oath was a violation of articles 6-1 and 6-3 of the Convention, that the lack of new motivation of the court of appeal of Paris was a violation of article 6-1 and that his detention of 2 years and 6 months pending investigation was a violation of article 5-3. On March 24th 2009, the application was communicated to the agent for the French government. On September 29th 2009, the applicant requested the Court to organize a public hearing on the case. It was rejected by the Court.
On October 14th 2010, the Court ruled that to put a suspect under oath was a violation of the right to remain silent and the right against self-incrimination, so there were violations of articles 6-1 and 6-3. The Court found the other allegations of violation of the Convention to be inadmissible. The applicant was represented by Me Patrice Spinosi who didn’t return our emails for comment.
The Court also reminded that the right to meet his lawyer prior to any police interrogation, and then to be assisted by his lawyer during these interrogations were both guaranteed by article 6 of the Convention.
Under article 626-1 of the code of penal procedure, the applicant can now request from a special commission, a new trial to redress the violation of article 6 found by the Court.