You are currently browsing the category archive for the ‘Article 5-5’ category.
On January 7th 2004, the minister of state Patrick Leclercq committed upon accession to the Council of Europe, to submit to the Monaco National Council a bill on police custody (Appendix 5, 1-A) “in order to ensure the compatibility of Monaco legislation with the ECHR and its Protocols”. On October 5th 2004, Monaco became a member of the Council of Europe. On November 30th 2005, Monaco ratified the European Convention of Human Rights which entered into force the same day.
On December 26th 2007, the law 1.343 introduced articles 60-1 to 60-12 on police custody in the code of penal procedure. Until then, police custody was not regulated by any law. Under these articles, the detention of a suspect in police custody can only be ordered by a police officer (art.60-2) and is supervised by the prosecutor general (art.60-1) who can release the suspect (art.60-3). The suspect should be brought before the prosecutor general within 24 hours of his arrest (art.399) who can order orally his detention for up to 6 days pending trial (up to 4 days not including weekends and labor holidays).
On November 24th 2011, bill 894 on police custody was submitted to the National Council. The bill 894 introduced a new requirement for the prosecutor general to notify promptly the “freedom judge” of the detention of a suspect in police custody (art.2 of bill 894). But the bill 894 don’t allow the “freedom judge” to get access to the custody record, to control the conditions of detention, to rule on the lawfulness of the police custody and to release the suspect. Worse, the prosecutor general can still order the arrest of a suspect (art.157, art.261) and detain him without any of the legal safeguards of police custody (art.159). The lack of effective control of police and prosecutor general custody by a judge is a violation of article 5-1 of the Convention (judgment Medvedyev v. France (3394/03) §61).
Bill 894 doesn’t introduce any requirement to bring the suspect promptly before a judge to rule on the lawfulness of the police custody and if needed to order his detention pending trial, in violation of article 5-3 of the Convention. The prosecutor general shouldn’t perform these functions because he will prosecute the suspect (judgment Huber v. Switzerland (12794/87) §42).
Article 6 of the bill 894 confirmed the possibility to extend police custody up to 4 days on request of the prosecutor general (art.60-4). Moreover, Bill 894 doesn’t forbid in the same investigation several police and prosecutor general custody of a suspect.
But Bill 894 failed to introduce a “habeas corpus” for suspect in custody in violation of article 5-4 of the Convention (judgment Zervudacki v. France (73947/01) §77). It also didn’t create “an enforceable right to compensation” for the victim of an illegal detention in police or prosecutor general custody. This is a violation of article 5-5 of the Convention.
Therefore, Monaco seems to fail to honor its commitment made in 2004 to ensure the compatibility of his legislation on police custody with the Convention. Monaco National Council will vote on Bill 894 in Spring 2012 after discussion in the law committee.
In 2010, the French preventive mechanism under OPCAT (general controller of the detention facilities) published reports on its visits of the detention facilities in the airports of Bordeaux, Paris-Charles de Gaulle and Strasbourg in 2009. They revealed an administrative practice of the French border police to temporarily detain some passengers arriving on flights from outside the Schengen area, prior to decisions on their entry into France.
The passengers are arrested at the passport control in the terminals but also at preliminary passport checks in the gangways (CommDH(2006)2 §193). These preliminary passport checks seems unlawful as there are not “prescribed by law”.
The passengers are then detained incommunicado in cramped police cells inside the terminals (CPT/Inf (2001)100 §50, CPT/Inf (2003) 40 §22, CPT/Inf (2007)44 §27) or locked in the terminals (CommDH(2006)2 §194, HRW Lost in Transit p16). They are not informed of the reasons of their arrest and of their right to have their consulate notified of their detention (art.36 Vienna Convention on Consular Relations). They are not allowed the assistance of a lawyer (CPT/Inf (2003) 40 §39). The border police don’t record the reasons and the time of these detentions and the ethnicity of the passengers detained. It was alleged that some passengers were locked in a terminal for up to 10 days (CPT/Inf (2003) 40 §40).
On June 25th 1996, the ECHR ruled in judgment Amuur v. France (19776/92) that the detention for 20 days of four asylum seekers in the terminal of the airport Paris-Orly, was not “prescribed by law” (§53) and a violation of article 5-1 of the Convention. On September 25th 1998, the Committee of Ministers found in its resolution DH (98) 307 that the law 92-625 of July 6th 1992 as a general measure, will prevent further violation of article 5-1. But this law only allows the detention of the arriving passengers once they are notified of a refusal of entry into France (articles L-221-1 of the code of migration and asylum).
Therefore, the detention of arriving passengers prior to a decision on entry into France, is not “prescribed by any law” (NGO ANAFE Note June 2010 p3) and a violation of article 5-1 of the Convention. The absence of information on the reason of the detention is a violation of article 5-2. The lack of detention record, of lawyer assistance and access to a consular officer forbid the passenger to challenge the lawfulness of his detention in violation of article 5-4 and to enforce his right to compensation in violation of article 5-5 of the Convention.
On 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.
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 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.