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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 August 25th 2000, Ms. Horvath, an Hungarian citizen was interrogated in Dutch and English by Dutch speaking police officers of the Ghent police without the assistance of a sworn interpreter (art.47 bis of the code of criminal instruction). On March 27th 2001, she received a summon in Dutch from the prosecutor of the king of the Belgians.
On February 14th 2002, she was condemned in absentia by the tribunal of Ghent. On November 9th 2004, the court of appeal of Ghent condemned her in absentia.
On March 7th 2005, she was assisted by a Hungarian/Dutch interpreter to give her statement to the court during an appeal hearing (art.31 law June 15th 1935). It is unknown if the she was assisted by the interpreter during her meetings with her lawyer and if the key prosecution files and judgments were translated in Hungarian. On January 17th 2006, the court of appeal of Ghent found her guilty and sentenced her to the same penalty as the judgment of the tribunal of Gent. On September 18th 2006, her appeal to the supreme court (Cour de cassation) was rejected (case no P060298N).
On January 26th 2007, Ms. Horvath filed an application with the ECHR on the ground that she was not “informed promptly, in a language which she understood and in detail, of the nature and cause of the accusation against her” in violation of article 6-1-a) of the Convention. She added that she was interrogated by police officers without an interpreter in violation of article 6-1-e) of the Convention.
On January 24th 2012, Judges Berro-Lefèvre (Monaco), Jočienė (Lithuania), Karakaş (Turkey), Popović (Serbia), Raimondi (Italy), Sajó (Hungary), and Tulkens (Belgium) ruled unanimously her application inadmissible. They found that Ms. Horvath was informed “of the nature and cause of the accusation against her” because she submitted a brief in Dutch to the appeal court of Ghent and didn’t request during the appeal hearing for a translation in Hungarian of the summon.
The 7 Judges of the 2nd section also concluded that the allegation of violation of article 6-1-e) was inadmissible (art.35-1 of the Convention) on the ground that the applicant didn’t complain to the Belgium supreme court about the lack of interpreter during police interrogation. But according to the judgment of the supreme court (case no P060298N 7.8.9), the applicant explicitly raised this issue. Interestingly, the same section of the Court found an allegation of violation of article 6-1-e) admissible even though the applicant didn’t complain to the Turkish supreme court about the lack of interpreter during police interrogation (Judgment Şaman v. Turkey (35292/05) .25).
On October 26th 2010, the directive 2010/64/EU on the right to interpretation and translation in criminal proceedings was published. It establishes for suspect or accused persons, the right to free interpretation during police interrogation (art. 2.1), meetings with lawyer (art. 2.2) and hearings (art.2.1). It also confers them the right to free translation of any detention decision, any charge or indictment, any judgment (art.3.2) and other “essentials documents” (art.3.1) as well as the right to an effective remedy to challenge refusal to provide free translation (art.2.5) or free interpretation (art.3.5).
The Kingdom of Belgium have to bring into force the law necessary to comply with this directive by 27 October 2013 (art.9).
In autumn 1977, Ms. Agnes Roux disappeared. On August 13th 1983, Mr. Maurice Agnelet was suspected of her “murder” by an investigative judge, following the criminal complain of the mother of Ms. Agnes Roux. On April 23th 1986, the investigation chamber of the appeal court of Aix en Provence, confirmed the decision of the investigative judge to close the investigation without charging any suspect. On February 1st 1988, the supreme court (Cour de cassation) rejected the appeal of the mother of Ms. Agnes Roux (case 86-92512).
On December 20th 2000, Mr. Maurice Agnelet was again suspected of her “murder” by another investigative judge. On October 26th 2005, he was charged with “murder” by the investigation chamber. On December 20th 2006, he was acquitted by the criminal court of Nice. But the prosecutor appealed the acquittal (art.380-2 of the code of penal procedure). On October 11th 2007, he was found guilty of “murder” by the criminal court of Aix en Provence and sentenced to 20 years in prison. On October 15th 2008, the supreme court rejected his appeal (case 07-87723).
On December 11th 2008, Mr. Maurice Agnelet filed an application to the ECHR (see below) on the ground that the 20 years investigation and the prosecution after the expiry of the statute of limitation were both in violation of articles 6-1, 6-2 and 13 that the formal charge of October 26th 2005 didn’t contain in detail the nature and cause of the accusation of “murder” (where?, when?, how?) in violation of article 6-3-a) and the 2 questions of the head judge to the jury on a new charge of “complicity to commit murder” on the last day of the trial was another violation of article 6-3-a).
He added that the ruling of the 3 judges of the criminal court on October 9th 2007 which stated that he “lied“, was a violation of article 6-1, that the head judge refused to record the closing argument of the prosecutor on October 9th 2007 in violation of article 6-1, that the head judge had printed a decision where the jury found him guilty before its deliberation in violation of article 6-1 and that the criminal court judgment was groundless in regards to his guilt and to the length of his sentence in violation of article 6-1. On December 13th 2010 and August 17th 2011, the applicant submitted two additional briefs (brief 1, brief 2). The applicant is represented by Me Francois Saint-Pierre (Lyon/Paris).
On September 27th 2011, the 5th section of the Court ruled that the application was only admissible for the lack of ground of the criminal judgment, and communicated the application to the agent of French Republic with questions to be answered within 16 weeks. Surprisingly, the 5th section found that the formal charge of October 26th 2005 was not in violation of article 6-3-a) on the ground that it was a “93 pages brief” that detailed the “attitude of the defendant with the family” of Ms. Agnes Roux.
On April 7th 2008, Mr. Mahmoud Philippe El Shennawy was transferred to the notorious jail of Pau. He was placed in solitary confinement and was guarded by masked prison guards of the ERIS unit.
From April 9th to April 18th 2008, the applicant accused of armed robbery, appeared at the criminal court of Pau. Each day of court appearance, the applicant was strip searched naked for up to 8 times and asked by masked guards of the ERIS to bend over and/or squat. When the applicant was bending over and/or squatting, the ERIS guards were doing a visual inspection of his anus. These acts were videotaped by one of the guard. On April 11th 2008, the applicant refused to squat. Nevertheless the masked guards coerced him to squat naked. Later in the day, they forcibly removed his clothes, coerced him to squat naked and forced him to appear in court.
On April 11th 2008, the judge presiding the criminal court ruled that he couldn’t order the ERIS guards to stop these acts. On April 15th 2008, the judge of the administrative tribunal of Pau ruled that only the judges of the criminal court of Pau could order the ERIS guards to stop. On November 14th 2008, the administrative supreme court annulled the ruling of the administrative tribunal of Pau (case 315622) but refused to rule on the violation of article 3 of the Convention.
On October 15th 2008, the applicant submitted his case to the European Court of Human Rights arguing that the multiple strip searches, the bending over, the coerced squatting, the visual inspection of his anus and the videotaping of these acts were violations of articles 3 and 8 of the Convention. He added that the lack of effective remedy was a violation of article 13 and also that these acts prevented him to defend himself during the trial in violation of articles 6-1 and 6-3. On June 16th 2009, the application was communicated to the agent of the French government with questions to be answered within 16 weeks.
On January 20th 2011, the Court found a violation of article 3 of the Convention on the ground that the multiple strip searches, the bending over, the forced squatting. and their videotaping by masked guards were overall a degrading treatment. The Court also found that the applicant didn’t have any effective remedy to obtain redress, in violation of article 13 but forgot to examine the allegations of violations of articles 6-1 and 6-3.
The applicant was represented by Me Patrice Spinosi (Paris) who was not available for comments.
On December 12th 2005, Mr. Jalal Boukneter and Mr Nabil Boukneter were arrested for a drug trafficking investigation. They were detained in the police station of Villeneuve-sur-Lot where they were put under oath and interrogated for 3 days before they could meet their lawyer.
On November 22nd 2006, the investigation chamber of the appeal court of Agen refused to suppress the transcripts of police interrogation of the first 3 days of police custody. On March 20th 2007, the supreme court rejected their appeal (06-89555).
On September 19th 2007, the applicants lodged their application with the Court arguing that the refusal of the police to allow their lawyer to assist them in police custody, was a violation of article 6 of the Convention. On May 2nd 2011, the application was communicated to the agent for the French government. The applicants are advised by Me Laurence Morisset (Agen) who wasn’t available for comments.
In February 1998, Mr. Abdalwahab Guerni was contacted by an undercover police officer R. He was introduced to him through a police informant D. The undercover police officer R. asked to purchase drugs. On March 5th 1998, the applicant was arrested when delivering the drugs.
On November 18th 2003, the tribunal of Brugges convicted the applicant to 4 years in prison and to a fine. The applicant had argued that the covert operation was not authorized by law. On May 31th 2006, the appeal court of Gent rejected his appeal and his request to examine the prosecution witnesses R, D and the investigation judge. On 31th October 2006, the supreme court rejected his appeal.
On May 2nd 2007, the applicant submitted his case to the European Court of Human Rights arguing that his conviction was based on an entrapment and an illegal covert operation in violation of articles 8 and 6-1 of the Convention. He added that the investigation files were secret for the court in violation of article 6-1 and that he couldn’t examine the prosecution witnesses in violation of article 6-3-d).
On May 5th 2011, the application was communicated to the agent of the Belgium government with questions to be answered within 16 weeks. The applicant is represented by Mr. Hans Rieder (Gent) who didn’t reply our request for comments.
On January 23rd 2002, an investigation judge delivered a warrant for the arrest of Mr. Ahmed Bouhajla in an investigation on drug trafficking. On September 27th 2002, the applicant was condemned in absentia to 10 years in prison and to a lifelong ban of France by the tribunal of Paris.
In 2005, he was arrested in the Netherlands and extradited to France. On May 27th 2005, he appealed the judgment.
On September 30th 2005, he was condemned to the same sentence by the tribunal of Paris. The tribunal relied on testimonies of 4 witnesses (A. B. L. Z.) during the police investigation. These witnesses for the prosecution were not summoned by the prosecutor and were absent at the hearing.
The applicant summoned at his own cost the 4 prosecution witnesses for the appeal court hearing on March 14th 2006 but none of them shown up at the hearing. The prosecutor didn’t request a later hearing to summon them himself and didn’t request that a warrant for their immediate arrest be issued by the judges (art.439 of the code of penal procedure). The judges didn’t issue an immediate arrest warrant for the 4 prosecution witnesses but used their testimonies during the investigation to condemn the applicant.
On September 5th 2007, the supreme court rejected the appeal of the applicant based on article 6-3-d) of the Convention on the ground that…the judgment didn’t mention that the applicant made oral observations regarding the absence of the 4 witnesses for the prosecution or requested orally to postpone the hearing to summon them again.
On April 15th 2008, the applicant submitted his case to the European Court of Human Rights arguing that the conviction based on testimonies of prosecution witnesses absent at trial was a violation of article 6-3-d) of the Convention. The applicant is represented by Me Thomas Bidnic (Paris). On September 2nd 2009, the application was communicated to the agent of the French government with questions to be answered within 16 weeks. On April 16th 2010, the applicant submitted his observation.
On June 7th 2011, the Court found the application inadmissible on the ground that the applicant didn’t exhaust internal remedies and should have have submitted at the hearing written conclusions (art. 459 of the code of penal procedure) to “request” the judges to order a warrant for the immediate arrest of the prosecution witnesses or to postpone the hearing, under article 439 of the code of penal procedure. The applicant allegation that he made oral observations on the respect of article 6-3-d) of the Convention were dismissed by the Court because… it was found that the registrar of the judges of the appeal court of Paris didn’t record any transcript for the hearing of March 16th 2008.
This decision seems ludicrous because only the prosecutor and not the defendant have the right under article 439 to request from the judge the immediate arrest of the witnesses and only the prosecutor have the resources to summon effectively the witnesses (art.560 of the code of penal procedure). In Judgment Mayali v. France (69116/01), the Court found it was the responsibility of the prosecutor to make every effort for the witness for the prosecution to be at the hearing.
Moreover, it was the decision of the judges of the appeal court of Paris to use the testimonies of the prosecution witnesses despite their absence at the hearing, to convict the applicant, that violate article 6-3-d) of the Convention and the only remedy available for the applicant was the appeal to the supreme court (Cour de cassation).
Finally, if the registrar of the appeal court of Paris don’t record any transcript of the hearings, the examination by the defense lawyer of the prosecution witnesses become powerless.
Update :
According to Me Thomas Bidnic, this decision of the Court is going to force defense lawyers to write conclusions to request the arrest of witnesses absent at trial and to dismiss the written testimony of absent witness.
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.
On July 13th 2009, Mr. Duteil holder of probationary driver license, was stopped by a police officer. He was issued a citation because he was charged with the contravention of driving under the influence (art. R234-1 of the road code). The citation mentioned : “point (s) driver’s license penalty”. The applicant paid a fine of 90€.
On November 25th 2009, he was informed that following to the payment of the fine 90€, his driver license was invalidated by the Minister of Interior.
Under article L223-1 of the road code, the prepayment of the fine by the suspect is assimilated to a guilty plea in the contravention. Then the Minister of Interior sentences the suspect.
The probationary driver license hold 6 points at issuance. The contravention of driving under the influence (art. R234-1 of the road code) carries 6 points penalty in addition of the fine of 4th category. It may also result in the suspension of the driver license for up to 3 years.
Any driver license which hold 0 points is invalidated. In this case, the driver have to wait 6 months before passing the driving and theory exams, after being registered with a French driving school, notorious for their high tuition fees.
On January 11th 2010, Mr. Duteil filed an application (see below) to the European Court of Human Rights arguing that the lack of information on the penalty if a guilty plea is entered is a violation of articles 6-1 and 6-3-a) of the Convention. Moreover, according to the applicant, the absence of information on the penalty made him renounce illegally to his right to a public hearing by an tribunal in violation of article 6-1 and 13 of the Convention and he can’t appeal the interdiction for him to drive for 6 months which is according to him, an interference in his right to travel freely (art.2-3 protocol no 4). The applicant was represented by Me Frederic Casanova (Toulon).
On April 20th 2010, a chamber presided by Judge Peer Lorenzen found the application to be inadmissible under article 35-3-a) of the Convention (manifestly ill-founded) and stated that the applicant could have ask verbally legal information about the penalty to…the police officer who issued the citation or to the driver license department “within 45 days.” But the applicant was not informed of these rights and nothing indicates that the police officer and the driver license department have the legal capacity to offer such information.
The chamber also mistakenly stated that the driver was cited under article L234-1 of the road code instead of art. R234-1 of the road code.
On October 12th 2010, the same chamber found in decision SARL Comptoir aixois des viandes v. France (19863/08) that police officers were responsible during house search of the legal defense of the suspect (“chargés (..) des droits de la défense“).
These two decisions of inadmissibility manifestly ill-motivated raise concern on the quality and the seriousness of the decisions taken by this chamber presided by Judge Peer Lorenzen.
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.
After a first reading of Bill 563 at the National Assembly on November 25th 2010 (see previous post), the Bill 563 was sent back to the Senate for a second reading.
On November 30th 2010, at the 1100th meeting of the Committee of Ministers, it was announced that France didn’t submit yet any observation regarding the general measures taken following judgment Medvedev (3394/03) on March 29th 2010.
On 7th December 2010, the rapporteur Senator Dulait couldn’t answer the question of the president of the foreign affairs commission on how the release of the detainee will be organized following a judge order, as there is no provision in Bill 563 for this occurrence.
On December 22th 2010, Senator Boutant questioned the compliance of Bill 363 with the judgments Medvedyev v. France (3394/03) and Moulin v. France (37104/06) as the arrest of a sailor is not notified to a judge (art.5-1-c) but to the prosecutor of the Republic and there is no provision for detainee to have access to a lawyer (art.6-1, 6-3). Mr. de Raincourt representing the defense minister at the hearing, answered that he didn’t want to discuss this mater because it was not “his mission“.
A few minutes later, Bill 563 was passed by the Senate with no amendment. On January 5th 2011, President Sarkozy signed Bill 563 into Law 2011-13.
Law 2011-13 allows in derogation of the code of penal procedure, the arrest and the indefinite incommunicado detention of sailors who were on board ships which are suspected of drug trafficking, attempt of illegal entry in France or piracy. Law 2011-13 creates a French Guantanamo in the high seas.
Following our request for comments on our previous post, Mr. Tobias Thienel a contributor to the Invisible College Blog of the School of Human Rights Research, submitted us the following opinion on Bill 563 (see below).
The court docket of the ECHR contains two pending cases on the arrest and detention in high seas. Case Vassis and others v. France (62736/09) on the detention of the sailors of Junior was filed on October 29th 2009. Case Samatar and others v. France (17301/10) regarding the detention of Somali citizens pending the opening of an investigation on the hostage taking aboard the Ponant, was filed on March 16th 2010. Both have not yet been communicated to France
On October 13th 2010, the ministry of Justice introduced Bill 2855 to the National Assembly (House of Representative of the French Republic) to reform police custody to comply with articles 6-1 and 6-3 of the Convention. On November 29th 2010, Human Rights Watch submitted a brief on Bill 2855 to the Legal Affairs Committee of the National Assembly.
Representative Philippe Houillon (UMP) submitted amendments proposals CL108, CL109, CL110, CL111 , CL117 (see below) to the Bill 2855, in order comply with judgment Moulin v. France (37104/06).
The amendments proposals CL108 and CL109 require that police custody are under the control of a judge instead of a prosecutor in compliance with article 5-1-c) of the Convention. The explanatory note of CL108 names this new control a French “habeas corpus“. But CL108 doesn’t comply with article 5-4 of the Convention as there is no provision allowing the lawyer of the detainee to file a release motion with the judge (Zervudacki v. France (73947/01)).
CL110 and CL111 require all detention in police custody over 24 hours to be ordered by a judge.
Lastly, CL117 makes mandatory to bring suspect before a judge if they are not released by the prosecutor following police custody. Unfortunately, this is not in compliance with article 5-3 of the Convention as police custody can last up to 2 to 6 days in France, and the time limit to be brought before a judge is not set.
Moreover, it could be the same judge who ordered the detention over 24 hours and who later control this same order.
Update : On December 15th, the Legal Affairs Committee voted in favor of amendments CL108 and CL109 but against CL111 and CL117. CL110 was removed by the Representative Philippe Houillon.
The general debate on the bill 2855 will start on January 18th 2011.
On September 22nd 2008, Mr. Philippe Creissen a lawyer, was arrested in his home of Saint-Andre (Reunion Island), following a complain of “assault” by his neighbor. He was detained in police custody for 24 hours by order of a police officer (art. 63 of the code of penal procedure). Then the prosecutor of the Republic ordered his detention for an additional 24 hours. But he was finally released without charge after more than 25 hours of police custody.
On September 11th 2009, he was formally charged with “assault” by an investigating judge. On December 24th 2009, the applicant filed a motion to dismiss at the investigation court of the appeal court of Saint-Denis (Reunion Island). On April 27th 2010, the court rejected his motion. On April 28th 2010, the applicant filed an appeal (10-83674) to the Supreme Court (see below).
He argued that his detention in police custody under the control of the prosecutor was a violation of article 5-1 of the Convention (Moulin v. France (37104/06)), that his detention in police custody without being brought before a judge was a violation of article 5-3 of the Convention and that the lack of assistance of a lawyer during his police custody (no access to the police reports and absence during police interrogations) was a violation of articles 6-1 and 6-3 of the Convention (Brusco v. France(1466/07)).
The prosecutor of the Republic submitted a lengthy 39 pages brief in response stating surprisingly that there was no violation of article 5-1 of the Convention on the ground that the prosecutor of the Republic was a “judicial authority” (pages 36,37), that there was no violation of article 5-3 of the Convention on the ground that this article didn’t apply to the first “48 hours of police custody” (pages 36,37) and that there was no violation of articles 6-1 and 6-3 (page 5) because the applicant didn’t request a private meeting of 30 minutes with his lawyer (art.63-4 of the code of penal procedure).
An hearing was held on December 10th 2010. The applicant was represented by Me Patrice Spinosi (full speech).
Update :
On December 15th 2010, the supreme court ruled that the prosecutor was not a “judicial authority“ (judgment Moulin v. France (37104/06)). Nevertheless the court failed to acknowledge the violation of article 5-1-c) on the ground that this article didn’t apply because the appellant was released after 25 hours of police custody.
Surprisingly, the supreme court also ruled that there no violation of articles 6-1 and 6-3 of the Convention on the ground that the applicant waived his rights under the Convention, to his lawyer being present during police interrogation with access to the investigation files (Brusco v. France (1466/07) §45) by… simply not asking to meet his lawyer confidentially for 30 minutes (art. 63-4 of the code of criminal procedure).
On Sfffvdvdvdfvdfvdfvdvdfvdvdvdeptember 22th 2008, Mr. Philippe Creissen was arrested for “assault“. He was detained in police custody for 26 hourscsdfcscsdddddsdsoocdncfdcfecedceOn
On 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 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 January 13th 2009, the E.C.H.R found in case Taxquet v. Belgium (926/05) [en] a violation of article 6-1 of the Convention on the ground that the ruling of the criminal court (“cour d’assises“) was not motivated. On June 5th 2009, 5 judges of the grand chamber accepted to hear the appeal of Belgium. On September 15th 2009, France submitted a brief (see below). On October 21th 2009, a public hearing was held by the Court [en].
On November 16th 2010 the grand chamber confirmed [en] the finding of the violation of article 6-1 of the Convention.
On September 25th 2008, the bill 4-924 introducing the motivation of ruling of criminal court was submitted to the Senate. On December 10th 2009, the senate voted the law which took effect on January 21th 2010. Under the new law, the defendant can only be condemned if the admissible evidences shows there is no reasonable doubt that the defendant is guilty. The grounds for the guilty ruling and for the sentencing, have also to be stated and an appeal to the supreme court is created.
In France, the rulings of the criminal court are still not motivated. In 2009, there was 3,345 rulings by criminal courts in France. The supreme court (Cour de cassation) ruled that the lack of ground was not a violation of article 6-1 of the Convention (cases 08-86480, 08-88112, 09-82459, 09-81.018, 09-82665, 09-85146, 09-86090, 09-84166, 09-87307, 09-88414).
The French government didn’t introduce any reform of the criminal court. In its threatening observations to the E.C.H.R, the French government argued that the grand chamber couldn’t find a violation of article 6-1, otherwise thousands of criminal court rulings will have to be quashed (34) and that the E.C.H.R didn’t have the capacity to make such decision (33).
On November 4th 2010, the the ministry of Justice notified all prosecutors and judges of France (source : Me Eolas), that prosecutors were ordered to initiate together with local law enforcement officials, ex-parte meetings with judges about the suspension of articles 6-1 and 6-3 of the Convention for suspects in police custody.
According to the unclear wordings of the ministry, these ex-parte meetings seems to be organized to avoid that judges continue to dismiss interrogation transcript of suspects in police custody, for violation of articles 6-1 and 6-3 of the Convention. The notices also request all prosecutors to inform the ministry of Justice of any “difficulty” they might encounter while executing this order and of any judgment or court order which didn’t consider that articles 6-1 and 6-3 of the Convention were suspended for suspects in police custody.
The order to initiate these ex-parte meetings seems in full violation of articles I.2.d, V.1, V.3.b of the Recommendation R(94)12 of the Committee of Ministers to members states on the independence, efficiency and role of judges and of articles 13.b, 19, 24.b, 28 of the Recommendation Rec(2000)19 of the Committee of Ministers to member states on the role of public prosecution in the criminal justice system.
The content and the date of these ex-parte meetings between prosecutors and judges will not be released to the defense lawyers and to the public.
A breach of article 6-1 of the Convention (..everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal..) could then be found for all the proceedings in which a judge participated in such ex-parte meetings with the prosecutor.
The order to initiate these ex-parte meetings seems then in violation of article 1 of the Convention (The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention).
On October 13th 2000, Mr. Vladlen Katritsch was charged with theft, document forgery and illegal stay in France. He was assisted by a Russian/French interpreter and an appointed lawyer during part of the investigation.
The applicant was then condemned in absentia at the tribunal of first instance of Compiegne and then at the appeal court of Amiens. He requested a retrial and to be assisted by a lawyer and a Russian/French interpreter. On October 23th 2006, the appeal court rejected his requests and refused to postpone the hearing. On October 24th 2007, his appeal to the supreme court (Cour de cassation) failed.
On April 23th 2008, the applicant filed an application with the E.C.H.R arguing that the lack of assistance by a lawyer and an interpreter was a violation of articles 6-1 and 6-3 of the Convention. On July 10th 2009, the application was communicated to the agent of the French government with questions to be answered before 16 weeks. The applicant is represented by Me Ruben Garcia (Paris) who didn’t return our email for comments.
On November 4th 2010, the Court found a violation of articles 6-3-b) and 6-3 -c) of the Convention. The court found no violation of article 6-1-e) because the applicant could speak basic French. The court ordered the French Republic to pay €3,000 of damages and €0 for legal fees.
Under article 626-1 of the code of penal procedure, the applicant can ask for a new trial to a special commission, to redress the violation of article 6 found by the E.C.H.R.
On August 5th 2010, the applicant filed an application with the E.C.H.R arguing that the mandatory membership to Interloire was a violation of article 11-2 of the Convention. The applicant is represented by Ms. Marie-Ange Hegron of the N.G.O CDVI.
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.
On March 1st 2010, the applicant filed an application with the E.C.H.R 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 Republic 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 general inspector of detention facilities (the national preventive mechanism of OPCAT) on his visit of the local jail of Luynes in January 2009 .
On 7t
h June 1999, the applicant was arrested for attempted murder and placed in police custody. The next day, he was interrogated before he could meet his lawyer and after being put under oath. On 9th June 1999, he was charged with 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 31th 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 filed an application with the E.C.H.R 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 Republic. 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 the fact for a suspect to be put under oath in police custody 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 rights 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 criminal procedure, the applicant can now request from a special commission of the judicial supreme court, the organization of a new criminal trial to redress the violations found by the E.C.H.R.
French Polynesia is an overseas country of the French Republic. The coutry has its own president, ministers, national assembly, flag, currency, phone area code and is home to many local languages (Tahitian, Marquisian, Paumotu, Mangarevian) widely spoken by the population and authorized to be used in legal contract and business transaction (art. 57 law 2004-192). French is the language of the French Republic (art. 2 of the Constitution) and the official language of French Polynesia (art. 57 law 2004-192).
On May 13th 2005th a resolution 2005/559 was passed by the national assembly allowing any of his members to use French or any Polynesian languages in their speech. On March 29th 2006, the administrative supreme court (conseil d’etat) ruled that the resolution was canceled.
On September 28th 2006, the applicant filed an application with the E.C.H.R arguing that the forbidden use of Tahitian in the national assembly was a violation of articles 10,11 and 14 of the Convention.
On September 21th 2010, the court confirmed case-law Georges Clerfayt and others v. Belgium (10650/83) of May 17th 1985 and ruled the application inadmissible ratione materiae. The applicant was represented by Me Philippe Temauiarii Neuffer.
On January 20th 2009, a parking ticket was issued for the car parked by the applicant at Montigny-le-Bretonneux. A fine notice was sent to the applicant son’s who registered the car. On March 5th 2009, the applicant requested the district attorney to dismiss the proceeding against his son and open proceeding against him under art. 529-10 1-b) of code of criminal procedure . He also requested to be prosecuted to challenge the legality of the parking ordinance in court.
On June 15th 2009, the district attorney rejected the applicant request. But after a new request was made by the applicant, the district attorney informed him on July 31th 2009 that the case was sent to the court and that he will be served. Surprisingly a notice for repossession for 33 Euros was served for his son on October 28th 2009. On May 21th 2010, a final notice for 40,5 Euros was served. On May 27th 2010, the fine was paid by the applicant for his son.
On July 9th 2010, the applicant and his son filed an application with the E.C.H.R arguing that the refusal of the district attorney to prosecute him in a court was a violation of articles 6-1 and 13 of the Convention and that the condemnation by a district attorney and not a court was a violation of article 6-2. The applicants are advised by Me Philippe Yllouz.
On September 29th 2010, the application was communicated to the French Republic with questions to be answered within 16 weeks.
On the same day, the agency Conseil Constitutionnel ruled in the application 2010-38 QPC that the lack of judicial review of the decision taken by the district attorney was a violation of the Constitution.
On October 19th 2009, Mr. Tisset was arrested for a narcotic offense, by order of an investigating judge. The applicant was not informed of his right to remain silent, and requested immediately to talk to a lawyer. But he was denied any legal assistance during his police custody of 2 days and 17 hours, under a special derogation for all narcotic offenses investigations (art. 63-4 of the code of penal procedure). During this police custody, he made self incriminating statement.
Under art. 63-4 of the code of penal procedure, the suspects of narcotic offenses detained in police custody are not allowed to receive any legal assistance for the first 3 days of their detention. Under the articles 706-88 and 803-2, 803-3 of the code of penal procedure, these suspects can be detained for up to 5 days before being interrogated by a district attorney or an investigating judge.
The applicant filed a motion to dismiss his statement in police custody arguing that the lack of notice of the right to remain silent and of access to legal assistance while in police custody was a violation of articles 6-1 and 6-3 of the Convention. On April 1st 2010, the investigation chamber of the appeal court of Aix-en-Provence rejected the motion to dismiss, on the ground that the E.C.H.R case law regarding other countries was not binding for French courts. The applicant appealed the ruling to the supreme court (Cour de cassation).
On October 19th 2010, the supreme court ruled that the arguments of the appeal court were erroneous, but that the articles 6-1 and 6-3 of the Convention were suspended until July 1st 2011 for a “good administration of justice“. On October 20th 2010, the applicant filed an application with the E.C.H.R. He is represented by Me Patrice Spinosi who didn´t reply our emails for comments.
Update :
On January 121 2011, the applicant was found guilty by the tribunal of Paris. He appealed the verdict. On April 12th 2011, the Court found the application inadmissible on the ground that an appeal was pending and that the applicant could still be acquitted by appeal court. The Court refused to rule on the suspension of the articles 6-1 and 6-3 of the Convention, alleged by the applicant to be a violation of article 1 of the Convention.
It is unclear why the E.C.H.R ruled in less than 5 months on the case and if another application to the E.C.H.R will be admissible as the national remedy has already been exhausted on October 19th 2010.
On October 19th 2010, the ministry of Justice notified all district attorneys (D.A) and judges of France that the rights under article 6-1 and 6-3 of the Convention were suspended for suspects in police custody until July 1st 2011. According to the official notice, these rights are the right to be informed of the right to remain silent and the right to have the legal assistance of a lawyer during police interrogation (case Brusco v. France (1466/07)).
The notice also stated that judges in France cant dismiss confession obtained in violation of articles 6-1 and 6-3 of the Convention and that any ruling of dismissal will be appealed by the district attorney.
The suspension seems to apply from May 3rd 1974, date of the entry into force in France of the Convention for the Protection of Human Rights and Fundamental Freedoms to July 1st 2011.
The notice explained that this suspension of articles 6-1 and 6-3 of the Convention is based on 3 controversial rulings of the supreme court on October 19th 2010(case Tisset (10-82.902), case Sahraoui (10-82.306), case Bonnifet (10-85.051)). Case Sahraoui and Bonnifet were brought to the supreme court following appeals by the D.A of the appeal court of Poitiers and the one of the appeal court of Agen.
The D.A of the supreme court pleaded that the articles 6-1 and 6-3 of the Convention should be considered having being suspended until July 1st 2011 because the agency Conseil Constitutionnel already ruled in the application 2010-14/22 QPC [en] that rights under the Constitution were suspended for suspects in police custody until July 1st 2011. The ruling of the supreme court in favor of the retroactive suspension of the Convention for a “good administration of justice“, was a move that left numerous lawyers in France bewildered.
In fact, the obligation of the French Republic under the articles 6-1 and 6-3 of the Convention, can only be suspended “in time of war or other public emergency threatening the life of the nation” (art.15-1 of the Convention). The Secretary General of the Council of Europe couldn´t confirm to have been informed of the suspension announced by the ministry of Justice (art.15-3 of the Convention).
The suspension by the French ministry of Justice of articles 6-1 and 6-3 of the Convention seems then blatantly in violation of article 1 of the Convention (The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention).
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.
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.
On February 3rd 2003, an investigation was opened on an armed robbery committed in a jewelry store in Courchevel (France). On January 12th 2004, the French investigating judge requested by letters rogatory that Mr. Boban Stojkovic detained in Bruges (Belgium), be interrogated in presence of his lawyer (art. 113-3 of the code of penal instruction) on his alleged involvement in the armed robbery.
On March 11th and 12th 2004, the applicant was interrogated by Belgium police officers in the presence of the French investigating judge and a French district attorney. The applicant immediately requested the assistance of a lawyer but no lawyer was appointed to him until.. November 2th 2004.
On February 1st 2007, the applicant was formally charged for the armed robbery. On May 9th 2007, the appeal court of Chambery rejected his motion to suppress the transcript of his interrogation of 2004. On November 20th 2007, the supreme court , dismissed his appeal no 07-86503. On December 3rd 2008, the applicant was sentenced to 6 years in jail.
On May 16th 2008, the applicant filed his case with the E.C.H.R arguing a violation of article 6-3-c of the Convention., due to the lack of assistance of a lawyer during his interrogation in 2004. The applicant is represented by Me Michel Jugnet.
On December 2th 2009, the case was communicated to the French Republic with questions in reference to the judgment Salduz v. Turkey (no 36391/02). The agents for the French, Belgium and Serbian States were given the deadline of April 2th 2010 to submit their answers.
Update :
On October 27th 2011, the Court found a violation of articles 6-1 and 6-3-c) of the Convention and condemned the French Republic to pay €5,000 of damages to the applicant.
European Court of Human Rights News 