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At an unspecified date in 1999, the prosecutor of the district of Zürich interrogated several agents of the embassy of the Democratic People’s Republic of Korea (DPR Korea) in Zürich. Mr. Meier and his lawyer were present during the questionings.
On February 3rd 2004, the applicant was charged with defrauding the embassy of DPR Korea. On October 7th 2004, he was condemned by the tribunal of Zürich to 27 months in jail. His conviction was based on the statements of the staff of the embassy to the prosecutor. These prosecution witnesses were absent at the hearing of the tribunal of Zürich.
On November 25th 2005, the superior court confirmed the conviction and the sentence. The prosecution witnesses were also absent at the hearing of the superior court. On January 30th 2007, the supreme court of the district of Zürich dismissed his appeal. On September 3rd 2007, his appeal (6B 51/2007) was rejected by the Swiss supreme court (Federal Tribunal) .
On February 28th 2008, he filed an application to the European Court of Human Rights arguing that to admit testimonies of Korean embassy staff is a violation of article 6-1 of the Convention. He argued that the testimonies of the agents, who enjoy diplomatic immunity (art.31-1 of the Vienna Convention on Diplomatic Relations) were inadmissible because these agents couldn’t be prosecuted for false testimony (art.307 of the penal code).
On June 18th 2013, the majority of the 2nd section of the Court ruled that his application was inadmissible on the ground that “the Court considers it is not necessary to answer the question of the admissibility of the testimonies of diplomatic agents” (54) absent at both hearings. Surprisingly, the section added that the government of DPR Korea may waive the immunity of its diplomatic agents to be prosecuted for false testimony in Switzerland, “if needed for a fair trial” (61).
The applicant was represented by Me Hugo Camenzind (Switzerland) who didn’t answer our request for comments.
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).
On n/a, Ms. Fernandez was informed by a notice of December 15th 2006 that she was suspected of speeding at n/a on the road n/a in n/a on September 13th 2006 at n/a (art. R413-14 of the road code).
On n/a, she had to deposit €180 to get her non-guilty plea registered by the prosecutor (art.530 of the code of penal procedure).
On January 7th 2008, the applicant appeared in court without being able to get access to the prosecution file of evidence of her case. She was not assisted by a lawyer and wasn’t informed when the judgment will be given (art.462 of the code of penal procedure). On n/a, the judge found her guilty of n/a and condemned her to a fine of €135, to administrative cost of €22. Following the condemnation, she automatically lost 1 point out of her 12 points driving license.
On February 18th 2008, she filed an appeal to the supreme court (Cour de cassation) against the judgement. On May 3rd 2010, she was informed that on September 17th 2008 the supreme court ruled her appeal inadmissible (art.605 of the code of penal procedure) for a violation of article 568 of the code of penal.
On October 29th 2010, she filed an application to the ECHR on the ground that the lack of access to the prosecution file of evidence was a violation of article 6-1 of the Convention. She added that the lack of formal notification of the judgment of Montpellier was a violation of article 6-1 and 13, and that the requirement to file in person her appeal to the supreme court, was a violation of article 6,13 and 14 of the Convention. She stated that the prosecutor was not required to file in person his appeal.
On January 17th 2012, the 5th section of the Court ruled her application inadmissible on the surprising ground that because the administrative judge Fernandez was condemned to a fine of €135, “the applicant has not suffered significant disadvantage regarding her right to a fair trial” (art.35-3-b) of the Convention).
On October 6th 2011, the 5th section of the Court ruled in judgment Wagner v. Luxembourg (43490/08) that the allegation of violation of article 6-1 during proceedings following which the applicant lost 4 points out of his 12 points driving license, was admissible (§25).
On March 18th 1997, the Court found in judgment Foucher v. France (22209/93) that the lack of access of the accused to the prosecution file of evidence was a violation of article 6-1 and 6-3 of the Convention. In this case, Mr. Foucher was condemned to a fine of €457 for insults.
On May 6th 2008, Greenpeace France challenged the legality of the executive order 2008-209 at the administrative supreme court (Conseil d’etat). The executive order was taken by the French prime minister after receiving secret legal advice from unknown staff of Conseil d’etat, secret report from ministry of ecology and opinion 2008-AV-0054 of French Authority of Nuclear Safety (ASN). On July 9th 2009*, the private company AREVA owned, funded and controlled by the French Republic, submitted a secret brief “amicus curiae“*. On July 10th 2009, an hearing was organized on the case (no 315980) during when the “public adviser” submitted a secret brief*. After the hearing, the ministry of ecology submitted a secret brief*.
On July 28th 2009, Greenpeace France was informed that a groundless decision was taken not to rule on the case until further notice. On March 22nd 2010*, a secret hearing was organized where witnesses didn’t testify under oath (art.R623-5 of the code of administrative justice). On May 21st 2010*, a hearing was organized and a secret brief* was submitted by the “public adviser“. On June 30th 2010, unnamed administrative judges released a decision dismissing the legal challenge of Greenpeace.
On September 22nd 2010, Greenpeace France filed an application with the ECHR (see below) arguing that the groundless decision not to rule, the testifying of witnesses who didn’t take the oath, the secrecy of the hearing of March 22nd 2010, the lacking of the transcript of the secret hearing, the refusal to communicate to Greenpeace France the 2 secret briefs of the “public adviser” were a violation of article 6-1 of the Convention. On December 13th 2011, Judge Villiger (Liechtenstein), Judge Jungwiert (Czech Republic) and Judge Yudkivska (Ukraine) ruled the application inadmissible as manifestly ill-founded (art.35-3-a) on the ground that Greenpeace France was acting “to protect the rights of citizens to live in an healthy environment” rather than its own rights. Greenpeace France was represented by Me Alexandre Faro (Paris).
*the date of the hearings and the existence of the secret briefs was not revealed in the Conseil d’Etat decision of the June 30th 2010 but only in the ECHR application of Greenpeace France.
On September 12th 1998 around 2pm, Mr. Alain Dubois was found dead in a public park near the railway station of Pau. He had suffered serious head injuries and multiple trauma.
The police officers in charge of the investigation didn’t treat the area as a scene of crime. They didn’t collect and safeguard any evidence on the scene and on the body. They didn’t document postmortem changes to establish the location of injury and the time and place of death. No documentation of the social, medical and mental health history of the decedent was made. The police officers didn’t launch a witness appeal. Some pictures of the body were taken and a quick visual examination was made by a family doctor.
Around 6pm, a police officer notified the next of kin of the death of Mr. Dubois. He added that the police investigation on cause of death (art.74 of the code of penal procedure) concluded that his death was a suicide. On September 15th 1998, the prosecutor Dreno closed the investigation without ordering an autopsy, and authorized the release of the body for burial. On September 18th 1998, the funeral took place.
On September 24th 1998, the family of the decedent pressed charges for murder and requested an autopsy. It was the start of a 8 years legal battle which cost the family €25,000. They had to pay a large deposit and hire several lawyers to request that the police conduct a second investigation and to have them perform essential investigative work (DNA testing, hair analysis, autopsy, blood test, reenactment, interrogation of witnesses). Several of their requests were denied (witness appeal, interrogation of witnesses). On August 9th 2006, the investigative judge decided to close the investigation. On October 24th 2006, the appeal court of Pau confirmed his decision. On May 9th 2007, the supreme court (Cour de cassation) rejected the appeal of the family without holding any hearing (art. 567-1-1 of the code of penal procedure).
On November 17th 2007, the family filed an application with the ECHR (see below) arguing that the authorities didn’t act of their own motion for the the second investigation. The applicants added that the 8 years investigation suffered considerable delays and was conducted only to confirm the findings of “suicide” of the first investigation. They alleged a violation of articles 2, 6-1 and 13 of the Convention. The application was not communicated by the Court to the agent of the French Republic.
On July 7th 2011, the grand chamber of the Court stated again in its judgment Al-Skeini and others v. UK (55721/07) : “165. What form of investigation will achieve the purposes of Article 2 may vary (..). However, (..), the authorities must act of their own motion (..). They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (..) 166. (..) The authorities must take the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye-witness testimony, forensic evidence and, where appropriate, an autopsy (..).
On November 15th 2011, the Judges of the 5th section found the application inadmissible on the ground that several requests of the family “were granted within reasonable time” in the 2nd investigation. They added that the 2nd investigation was effective. The Judges didn’t rule on the effectiveness of the first investigation and on the fact that the 2nd investigation was at the initiative of the next of kin.
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 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 January 18th 2006, the applicant was interviewed by congressmen during the congressional inquiry into the Outreau investigation.
In 2004, Ms. A.Y arrived from Guinea to claim asylum. She alleged to have been detained, tortured and raped by military officers in 2003 due to her political activity in U.F.R party. In May 2005, she moved in with her partner a EU citizen from Netherlands. In 2006, she suffered an miscarriage which ended her pregnancy. On June 4th 2009, Ms. A.Y and her partner registered a civil partnership (PACS)with the intent to get married at a later date.
On May 2nd 2008, the national court of asylum (CNDA) rejected her appeal on the decision of the asylum officers of OFPRA to deny her asylum. On May 5th 2009, the prefect in Annecy ordered her deportation to Guinea due to her “unlawful” stay. On May 15th 2009, Ms. A.Y filed an application to the ECHR on the ground that she will be submitted to torture (art.3), separated from her partner (art.8) and not able to get married (art.12) if deported. The French government suspended the deportation order following request from the E.C.H.R (art.39).
The French government never transposed the articles 2-2-b) and 3-2-b) of the directive 2004/38/EC in national law (code of migration and asylum). These articles allow registered partner and partner in durable relation with a EU citizen to obtain a 5 years residence card upon registration. The deadline of the transposition of the directive 2004/38/EC was April 30th 2006. On July 25th 2008, the European Court of Justice ruled in case Metock (C-127/08) that any EU citizen’s family member have legal status under the directive 2004/38/EC irrespective of the lawfulness of his entry or stay before becoming a family member (99). The Court added an unlawful stay before becoming a family member can’t be a ground for deportation of the family member (97).
In its observation to the Court, the French government didn’t allege that the personal conduct of Ms. A.Y represents any “threat affecting one of the fundamental interests of society” . But it stated if the applicant is deported to Guinea, the couple could live there.
In its decision of October 11st 2011, the Court found that the deportation order to Guinea was in “accordance with the law“. On the contrary, the deportation order on the ground of “unlawful stay” (art. L511-1 of the code of migration and asylum) was taken in violation of articles 3-2-b) and 27 of the directive 2004/38/EC and the ECJ judgment Metock (C-127/08). The Court added that from May 2005 to April 2009, the couple couldn’t have a “legitimate expectation that right of residence would be granted to the applicant“. On the opposite, the applicant should have a legitimate expectation that the French government will respect the directive 2004/38/EC and the case-law of the European Court of Justice, and acknowledge her right of residence.
Finally, the Court ruled the application inadmissible as manifestly ill-founded on the surprising ground that if Ms. A.Y is deported to Guinea her EU citizen partner could live with her. But there is no provision under the Guinean immigration executive order 94/059 to grant an immigrant visa and a residence card to the partner or spouse of a citizen of Guinea. On the opposite, Ms. A.Y could live with her partner in any of the 27 countries of the European Union under articles 2-2-b), 3-2-b) and 7 of the directive 2004/38/EC.
This decision A.Y v. France (25579/09) raises serious concerns about the respect of the European Union Law and the case law of the European Court of Justice, by the European Court of Human Rights. The applicant was represented by Me Michele Blanc (Annecy).
In 1987, Mr. Djamel Beghal arrived in France to pursue studies at the age of 22 years old. In 1993, he became a French citizen. On October 1st 2001, he was extradited from U.A.E to France. On March 15th 2005, the tribunal of Paris condemned him to 10 years in jail for “preparing a terrorist attack” on the U.S embassy in Paris. On December 14th 2005, the appeal court of Paris confirmed the sentence, even there was unsufficient evidence according to U.S diplomatic cable 05PARIS3118 revealed by Wikileaks.
On December 23rd 2006, the French government stripped the applicant from his French citizenship and on September 19th 2007, took an order to deport him to his country of birth Algeria.
On May 26th 2009, the emergency request of the applicant to suspend the deportation order to Algeria was rejected by the administrative tribunal of Paris. On May 27th 2009, Mr. Beghal filed an application to the ECHR on the ground that he will be submitted to torture (art.3) and separated from his French wife and 4 childrens (art.8) if deported. On May 28th 2009, the ECHR requested the French government to suspend the order of deportation awaiting its decision on the application.
On May 30th 2009, the French government refused to comply with the request of the ECHR and attempted to deport the applicant at the airport Paris-Orly. French Police officers only stopped their attempt of deportation after being served with an emergency order from the administrative tribunal of Paris.
On May 22th 2010, the applicant was arrested and became a suspect in a police investigation. Surprisingly, on September 6th 2011, the ECHR found the application inadmissible on the ground that the applicant “couldn’t” be deported during investigation and decided to cancel its request to suspend the deportation order.
But the deportation order has not been canceled or suspended by the French government as there is no provision in the French law that allows to cancel or suspend the deportation order of a suspect in a police investigation. The applicant was represented by Me Bérenger Tourné (Paris).
On December 9th 1999, Mr. Thierry Ehrmann an artist opened a museum “the Organ” which offered residency for artists in the Abode of Chaos. The domain in the town Saint Romain au Mont d’Or, is the property of the real estate trust VHI owned by the artist. On December 9th 2004, the mayor of Saint Romain au Mont d’Or complained to the prosecutor of Lyon that there was drawings and slogans painted on the outside walls of the property.
On February 16th 2006 the tribunal of Lyon condemned the artist and the real estate trust VHI to fines of €20,000 and €100,000 each for infractions to the code of urbanism and ordered the walls to be cleared of drawings within 6 months. On September 13th 2006, the appeal court of Lyon condemned the artist to a fine of €200,000. On December 11th 2007, the supreme court (cour de cassation) annulled the ruling of the appeal court (case 06-87445). On December 16th 2008, the appeal court of Grenoble condemned the artist to a fine of €30,000, awarded damages of €1 to the town of Saint Romain au Mont d’Or and ordered the walls to be cleared of drawings within 9 months. On December 15th 2009, the supreme court rejected the appeal of the artist (case 09-80709).
On December 31st 2009, the applicants lodged their case to the European Court of Human Rights arguing that the fine of €30,000 and the order to clear the drawings of the outside walls were a violation of articles 10 and 1P1 of the Convention. He added that the ruling of the appeal court of Grenoble was a violation of article 7 of the Convention because pieces of art are by law exempted from the regulations of the code of urbanism (art.R421-1 6)). The applicants are represented by Me Thierry Moulin (Lyon).
On June 7th 2011, the Court found the application to be inadmissible on the ground that the condemnation of the artist was to “defend order” therefore “necessary in a democratic society“. The Court as the French courts refused to rule if the drawings on the outside walls of the domain are pieces of art. Surprisingly the Court invokes the Framework Convention on the Value of Cultural Heritage for Society not to protect the artist drawings but to justify the order to clear them in the name of..the conservation of “cultural heritage” . The Convention have not yet been signed by France.
On July 18th 2011, the 5th section of the Court modified the decision Ehrmann and VHI v. France by removing a statement indicating that observations of the government and the reply of the applicant were received by the Court. The head of registrar of the 5th section Claudia Westerdiek didn’t answer our email for comment. According to the applicant (see below his video), he never received the observation from the French government and never submitted any. He announced his intention to file soon another application with the Court.
From October 9th 2003, according to Mr. Pierre-Yves Chereul, the new headmaster T. of a junior high school in Nimes, began to harass him at work. On May 12th 2004, T. obtained a disciplinary sanction against the applicant. On December 7th 2006, the administrative tribunal of Nimes annulled the sanction.
On March 24th 2004, T. wrote a private letter about the alleged behavior of the applicant during a meeting on March 22nd, to G. head of the local parent association (FCPE). T. informed G. that he will use his answer in a disciplinary proceeding against the applicant. The letter was communicated to the two members of the parent association present at the meeting. They both denied the veracity of the allegations of T.
The applicant was denied legal aid by the employer of T. to sue T. for libel. Nevertheless, the applicant sued T. for libel at the tribunal of Nimes. On May 19th 2004, the district attorney submitted on behalf of the employer of T. a motion to dismiss the case arguing that the tribunal was not competent to hear the case. On October 14th 2004, the tribunal ruled to be non competent to hear the case. On November 21st 2006, the appeal court of Nimes confirmed the ruling. On March 5th 2008, the supreme court rejected the appeal of the applicant (case 07-12451).
On May 7th 2008, the applicant lodged a case to the European Court of Human Rights arguing that the refusals to hear his case were against the supreme court case-law in violation of article 6-1 of the Convention.
Surprisingly, on May 19th 2011, Judge Karel Jungwiert (Czech Republic) of the 5th section of the Court deemed the case Chereul v. France (24631/08) inadmissible. The registrar of the Court also informed the applicant that no ground for the decision will be given and that they will destroy all files of the case in 1 year.
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.
Ms. Martine Gardenal is a general practitioner practicing homeopathic medicine in Saint-Germain-en-Laye. She is not a health care provider under contract with the national health insurance (Assurance Maladie).
On December 14th 2005, she is condemned by the regional medical council to 6 months suspension of delivering care to members of the national health insurance following a complain of the national health insurance. On March 21th 2007, the sentence is confirmed by the national medical council. On January 24th 2008, the administrative supreme court (conseil d’etat) rejected her appeal.
On July 11th 2008, the applicant submitted her case to the European Court of Human Rights arguing that the refusal by the plaintiff to communicate her transcripts of patients interrogation was a violation of article 6-1 of the Convention. She added that the fact that judges of the national medical council belong to the national health insurance was another violation of article 6-1 and that her loss of revenues a violation of article 1 Protocole no 1. The applicant was represented by Me Laurent Hincker (Strasbourg).
On February 18th 2010, the Court found in judgment Baccichetti v. France (22584/06) a violation of article 6-1 of the Convention because the plaintiff didn’t communicate to the applicant a report submitted to the judges of the national medical council.
Surprisingly, on December 2nd 2010, Judge Karel Jungwiert (Czech Republic) of the 5th section of the Court deemed the case Gardenal v. France (35040/08) inadmissible. The registrar of the Court also informed the applicant that no ground for the decision will be given and that it will destroy all archives regarding the case in 1 year.
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.
On June 24th 1996, the European Commission of Human Rights ruled the case Ramirez Sanchez v. France (28780/95) was inadmissible (see previous post), based on the “fact” that the abduction was carried out by the Sudanese authority so the Commission was incompetent ratione personae. The Commission also added that the rendition to France by French domestic intelligence agency (DST), was part of a “cooperation” between the French government and the state of Sudan which didn’t amount to a violation of article 5.
On January 10th 2006, the daily newspaper Le Figaro published an interview of an ex-agent of the French domestic intelligence agency on the abduction and rendition of Mr. Ramirez Sanchez. On June 28th 2006, the applicant pressed charges for “abduction” and “sequestration” to the investigating judges of Paris court. On May 3rd 2007, an investigation judge closed the case without opening an investigation. On September 24th 2007, the investigation chamber of the appeal court of Paris confirmed the refusal to open an investigation. On 2008, it was revealed that a CIA agent was also involved in the planning of the abduction and rendition of the applicant.
On February 25th 2009, the applicant filed his case (13019/09) with the European Court. On July 8th 2009, he submitted a brief [fr] arguing a violation of articles 5, 6-1, 13, 17 in conjunction with article 14. The applicant argued that his abduction was carried out by French agents of DST with the help of a local politician with no executive mandate. He added that his abduction and rendition to France were also planned by the CIA and were not the result of a judicial cooperation between States.
On September 28th 2010, case El-Masri (39630/09) was communicated to Macedonia by the 5th section of the Court with detailed questions to be answered within 16 weeks (art.3,5,8,10,13). The case regards the abduction of a German citizen and his rendition to Afghanistan by CIA agents.
Surprisingly, on December 16th 2010, Judge Karel Jungwiert (Czech Republic) of the 5th section of the Court deemed the case Ramirez Sanchez (13019/09) inadmissible. The registrar of the Court informed the applicant that no ground for the decision will be given and that they will destroy all files regarding the case in 1 year (see below). The applicant was represented by Me Coutant-Peyre (Paris).
On May 7th 2009 at 08:50, Mr. Mosashvili was arrested for entering Monaco despite his administrative ban of the country (art. 23 executive order 3153 1964). He was placed in police custody for up to 24 hours under the control of prosecutor general (art. 60-1 of the code of penal procedure).
He was then brought the same day at 14:30 to the prosecutor general (art. 252) who issued an “arrest warrant” for his detention at the local jail (art. 162) for up to 6 days awaiting special speedy trial (art. 399). There is no provision in the code to grant bail to suspect or to motivate the “arrest warrant” for pretrial detention.
On May 8th 2009, he was brought to the tribunal and sentenced to one month in jail. On May 18th 2009, the appeal court rejected his appeal. On November 5th 2009, the applicant lost his appeal to the supreme court.
On May 4th 2010, he filed an application to the European Court of Human Rights arguing that the control of the police custody and the issue of an “arrest warrant” by the prosecutor general were violations of article 5-3 of the Convention. According to the applicant, the prosecutor general in Monaco being under the control of the executive branch, lacks the independence needed to have any “judicial power“.
He also complained of a violation of article 6-1 of the Convention on the ground that the supreme court allows the prosecutor general to submit his brief 4 months late in violation of article 479 and the prosecutor general is responsible of transmitting the briefs to the supreme court without any deadline (art. 485). The applicant was represented by Me Regis Bergonzi (Monaco).
Update :
On March 23rd 2011, Mr Philippe Narmino head of the justice department of Monaco revealed that he has been informed by an unknown source that the application was found inadmissible by an unknown Judge of the ECHR in February 2011.
On May 30th 2011, Mr. Erik Fribergh of the registrar of the Court refused to communicate us the decision as well as the name of the Judge who took it. On July 22th 2011, Me Regis Bergonzi refused to communicate us the decision because it was “vague“.
On October 19th 1995, Mr. Bernard Borrel a French magistrate working as an adviser for the minister of Justice of Djibouti, was found dead in the desert. His body was partly carbonized. The local police concluded that he committed suicide.
In April 1997, Ms. Elisabeth Borrel the widow of the deceased, obtained the opening of a criminal investigation for murder. In October 1997, two investigative judges based in Paris took over the investigation. In January 2000, one of the judge interrogated in unclear circumstances a key witness in Brussels.
On March 13th 2000, Ms. Elisabeth Borrel with her lawyer Me Olivier Morice announced during a press conference that they requested the minister of Justice to launch an internal investigation because the ongoing criminal investigation was neither prompt nor effective.
On March 14th 2000, Liberation published an article on the press conference. On November 14th 2001, the appeal court of Versailles condemned Liberation and its head Mr. Serge July for defamation to a single fine of €1,500 and to pay together damages of €3,000 to the two investigation judges. On February 14th 2008, the ECHR ruled in case July and Liberation (20893/03) that the condemnation was a violation of article 10 of the Convention.
On June 21st 2000, the investigation chamber of the appeal court of Paris ordered a new investigative judge to take over the criminal investigation. On September 6th 2010, Me Olivier Morice informed the minister of Justice that the two judges didn’t communicate a videotape to the new judge. He added that the investigation file contained a very unusual personal letter of the district attorney of Djibouti to one of the investigative judge. He requested the opening of an investigation by the internal affairs of the ministry of Justice.
On September 8th 2000, Le Monde published an article on the letter of Me Olivier Morice to the minister of Justice. After a first ruling of the court of appeal of Versailles was quashed by the supreme court, the appeal court of Rouen condemned Me Olivier Morice for defamation to a fine of €4,000 and to pay together with Le Monde, damages of €7,500 to the two investigative judges. On November 10th 2009, his appeal to the supreme court (Cour de cassation) was rejected (case 08-86295).
On May 7th 2010, Me Olivier Morice filed an application with the ECHR arguing that his condemnation for defamation was a violation of article 10 of the Convention and that the ruling of November 10th 2009 by a judge of the supreme court, publicly supporting one of the investigative judge was a violation of article 6-1 of the Convention. On September 6th 2010, the application was communicated to the agent of the French Republic with questions to be answered before 16 weeks. The applicant is represented by Me Julien Tardif and Me Claire Audhoui, both not available for comments.
In 2003, a book on the Borrel case, Omerta 2003 written by Ms. Sophie Floquet was published by Albin Michel headed by Mr. Francis Esmenard. On April 25th 2003, 2 investigative judges pressed charges for defamation. On December 13th 2006, the appeal court of Versailles condemned the applicants for defamation to a fine of €2,000 each and to pay together damages of €5,500 to the two investigating judges. On November 18th 2007, their appeal to the supreme court (Cour de cassation) was rejected (case 07-80504).
In 2008, the applicants filed an application with the ECHR arguing that their condemnation for defamation was a violation of article 10 of the Convention. On June 15th 2010, their applications was communicated to the agent of the French Republic with questions to be answered before 16 weeks.
On January 10th 2012, the 5th section of the Court ruled that the application was inadmissible on the ground that the allegations contained in the book Omerta 2003 were detrimental to the public image of the French “judicial institution” and the condemnation was necessary to protect the reputation of the French “judicial institution“. In its observations, the agent of the French Republic didn’t challenge the veracity of the allegations regarding the criminal investigation on the death of Mr. Borrel.
Ms. Sophie Floquet was represented by Me Antoine Comte and Mr. Francis Esmenard by Me Christophe Bigot.
On June 27th 2006, the appeal court of Orleans sentenced under art. 322-3 1° of the penal code, Mr. Francois Mandil to 2 months suspended sentence and €1,000 fine for damaging a genetically modified corn field of Monsanto during a political rally in 2004. On May 31 2007, the supreme court (Cour de cassation) rejected his appeal (case 06-86628).
On December 17th 2007, the applicant refused to comply with an order of the prosecutor of the Republic, to give a sample of his mouth cells for the storage of his DNA profile on the police database FNAEG.
On June 25th 2008, the Law 2008-595 created the article L671-15 3° of the rural code which allows a sentence of up to 3 years in jail and €150,000 in fines for causing “damages to genetically modified crop field“. But police officers are not allowed to profile DNA of citizen convicted under article L671-15 3°.
On January 22nd 2009, the court of appeal of Besançon sentenced the applicant under article 706-56-II of the code of penal procedure, to a fine €420 for refusing to give a sample of his mouth cells. On June 10th 2009 the supreme court (Cour de cassation) ruled his appeal as inadmissible.
On December 16th 2009, the applicant filed his case with the ECHR arguing a violation of article 8 of the Convention. On October 13th 2011, an article was published in Est Republicain claiming that the applicant received a settlement proposal from the “French government” of €1,500. It is unknown if the settlement proposal was from the registry of the Court and if it acknowledges the violation of article 8 of the Convention. The lawyer of the applicant qualified the settlement proposal of “incongruous” because the applicant was looking for justice and not money.
Surprisingly, on December 13th 2011, the 5th section of the Court ruled the application inadmissible on the ground that the settlement proposal was confidential (art.39-2) and that the release of the information to the newspaper Est Republicain was “malicious” , an “abuse of process” and the lawyer statement “casted discredit on the Government’s approach“.
The applicant was represented by Me Randall Schwerdorffer.
On July 5th 1950, Mr. Raymond Mis and Mr. Gabriel Thiennot were sentenced to 15 years of hard labor for the murder of an employee of a wealthy landowner. They claimed to have been tortured by military police officers (gendarmes) during 6 days until they signed a written “confession“.
In 1954, the French president pardoned them and they were released from prison. They both served more than 7 years in prison.
On November 1st 1988, the protocol no 7 to the Convention for the Protection of Human Rights and Fundamental Freedom entered into force. Article 3 of the protocol no 7 states :
When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
The applicants made 5 unsuccessful attempts to have their conviction reversed. Each time, they were not authorized by a commission to bring their case to the supreme court (Cour de cassation) competent under articles 625 and 626 of the code of penal procedure to reverse the conviction and award damages.
On September 12th 2007, the applicants submitted their case to the E.C.H.R arguing of the violations of articles 6 and 13. Me Jean-Paul Thibault represented both applicants.
On May 12th 2009, Judge Jungwiert (Czech Republic), Judge Berro-Lefevre (Monaco) and Judge Villiger (Liechtenstein) ruled their application inadmissible under article 35-3 of the Convention on the ground that the application was “manifestly ill-founded“.
According to the Court, the proceeding before the commission was not related to the determination of any of the civil rights and obligations of the applicants or of any criminal charge against them.
European Court of Human Rights News 