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On June 6th 2006, the Court found in judgment Clement v. France (37876/02) a violation of article 6-1 of the Convention on the ground that the length of the disciplinary proceedings wasn’t “within reasonable time” and awarded him €5,000 for damages. In fact, it took more than 8 years (1995-2003) and 3 courts for the applicant to have a definitive decision on a disciplinary complain against him in Roubaix. The applicant was represented by Me Nadia Weiler-Strasser (Sarreguemines).
On September 15th 2010, the Committee of Ministers adopted a Resolution DH(2010)128 which found satisfying the general measures taken by the French government to prevent further violation of article 6-1 of the Convention. The first measure is that a chief inspector of the administrative justice might make recommendations upon request (art. R112-2 of the code of administrative justice). The second measure is according to the French government the law 2002-1138 of September 9th 2002. But according to the Me Nadia Weiler-Strasser (see below her opinion), none of this measures are preventing further violation of article 6-1.
Indeed, according to the statistics of the annual report 2010, the length of proceedings in 2009 was still on average 5 years and 1 month if the litigation reaches the 3 administrative courts (administrative tribunal, administrative appeal court and administrative supreme court).
The Committee of Ministers found also satisfying the new remedy (art.R311-1 of the code of administrative justice) to obtain damages in the administrative supreme court (conseil d’etat) following a violation of the right to “a hearing within a reasonable time”. But according to Me Nadia Weiler-Strasser (see below her opinion) the administrative supreme court is not an independent and impartial tribunal because his members are directly nominated by the executive (art.13 of the Constitution). who is the defendant in this litigation.
She added that damages awarded are very low. Her findings are confirmed by the decision Durand v. France (4912/10) in which the Court found that the damages awarded by the administrative supreme court are 50% lower than the ones awarded by the Court.
Since September 2005, according to the case-law database Legifrance, the administrative supreme court have only heard 28 cases. In 2010, the average length of this remedy was 16 months (on 4 cases).
On August 15th 1994, Mr. Ramirez Sanchez a citizen of Venezuela was abducted in Sudan and then victim of an extrajudicial rendition to France carried out by officers of the French domestic intelligence agency (DST).
From August 15th 1994 to October 17th 2002, he was placed in solitary confinement and transferred between the 3 infamous jails in the Paris region (La Sante, Fresnes, Fleury-Merogis) by decisions of the administration of the ministry of Justice on unknown ground.
On June 24th 1996, the European Commission of Human Rights ruled in case Ramirez Sanchez v. France (28780/95) that the abduction and the extrajudicial rendition to France were not a violation of articles 3 and 5 of the Convention.
On December 25th 1997, he was condemned to life in prison for the murder on June 27th 1975 in Paris of 2 officers of DST and one agent of an unknown agency, in unclear circumstances. From October 17th 2002 to March 18th 2004, he was transferred to the prison of Saint-Maur and placed in a normal unit.
From March 19th 2004 to January 5th 2006, he was again placed in solitary confinement and transferred again between the 3 infamous jails (La Sante, Fresnes, Fleury-Merogis) because he talked about politics to a journalist. From January 5th 2006, he was transferred to the prison of Clairvaux and placed in a normal unit.
On July 4th 2006, the Grand Chamber of the E.C.H.R ruled by 12 votes against 5 votes, in case Ramirez Sanchez v. France (59450/00), that the solitary confinement the applicant for 8 years (1994-2002) was not a violation of article 3 on the ground that… the applicant would have talk about politics with other inmates (§149). In solitary confinement the applicant was waken up every hour of the night by prison wardens (§95).
The Grand Chamber ruled also that the absence of a domestic remedy to challenge a decision of solitary confinement was a violation of article 13 for the first period (1994-2002). The applicant was represented by Me Isabelle Coutant Peyre (Paris).
For the second period (2004-2006), the Grand Chamber ruled that since the administrative supreme court judgment Remli v. minister of Justice no 252712 on July 30th 2003, the administrative tribunal was a “remedy” to challenge of decision of solitary confinement. It then didn’t find a violation of article 13 and didn’t examine the violation of article 3 because of this remedy (§113). Surprisingly, the Court didn’t examine the effectiveness of the remedy of the administrative tribunal even though the applicant was questioning it in its observations of October 3rd 2005 (§3) and December 30th 2005 (§3).
Mr. Remli was serving in solitary confinement a sentence after an unfair trial (judgment Remli v. France (16839/90)). The administrative supreme court judgment Remli v. minister of Justice no 252712 on July 30th 2003 ruled that the decision of …June 18th 1998 to detain the plaintiff in solitary confinement was “illegal” but it didn’t award him damages and didn’t find a violation of articles 3 or 8 the Convention. No disciplinary or criminal action were taken against the chief of prison following the ruling.
The remedy of the administrative court system is a lengthy one. It can take up to 2 and a half years for the administrative tribunal to rule on the legality of the solitary confinement decision (administrative appeal court of Paris, judgment 09PA05734 on October 14th 2010) which is not suspended pending ruling.
Although article 726-1 of the code of penal procedure (law 2009-1436) allows a detainee to file for an “urgent ruling” within 48 hours on the solitary confinement decision, it is constant case-law that the solitary confinement decision is inadmissible to be ruled within 48 hours (administrative supreme court judgment 337534 on March 22th 2010).
On February 15th 2006, the Commissioner for Human Rights Mr. Alvaro Gil-Robles stated in his report following a visit to French prisons in 2005 : “Prisoners placed in solitary confinement have no effective administrative remedy at their disposal” (§133).
On December 2007, the CPT stated in its report CPT/Inf (2007)44 following a visit to French prisons in autumn 2006, that for the remedy to the administrative tribunal to be effective, the solitary confinement decision should be admissible to be ruled within 48 hours. The CPT also found that detainees were not informed of their rights to appeal the decision (§157).
In September 2009, the 4th edition of the ministry of Justice “handbook for new inmates” didn’t inform about the remedy to the local administrative tribunal on a solitary confinement decision (see below p50).
On April 2010, the French N.G.O OIP stated in its observations to the U.N Committee against Torture : “Remedies against such measures are limited” (p21).
Surprisingly, on November 30th 2010, the Committee of Ministers ruled in its Resolution CM/ResDH(2010)162 that article 726-1 of the code of penal procedure and case-law administrative supreme court judgment Remli v. minister of Justice no 252712 were satisfying as general measures to prevent violation of article 13 of the Convention.
Recommendation Rec(2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies states : However, the remedy required must be “effective” in law as well as in practice; – this notably requires that it be able to prevent the execution of measures which are contrary to the Convention and whose effects are potentially irreversible; (..) the “effectiveness” of a “remedy” within the meaning of Article 13 (..) implies a certain minimum requirement of speediness.
On July 27th 2006, the E.C.H.R found in the case of Zervudacki v. France (73947/01) a violation of articles 5-1-c) and 5-4 of the Convention, for the detention of the applicant on June 12th 1997 in the tribunal of first instance of Nanterre . Following a detention of 47h45 in police custody, the applicant was detained for 13h30 in this tribunal before being charged by an investigating judge. The Court didn´t examine the allegation of violation of article 5-3. The applicant was represented by Me Helene Farge.
The Court found a violation of article 5-1-c) on the ground there was no law authorizing such detention. This case-law was confirmed in case Maire d’Eglise v. France (20335/04).
The Court found also a violation of article 5-4 on the ground there was no proceedings by which the lawfulness of this pre-charge detention could be decided and the release ordered if the detention was unlawful.
In February 11th 2004, the French parliament voted law 2004-204 which added articles 803-2 and 803-3 to the criminal procedure code. Under these articles, the pre-charge detention following police custody is authorized for up to 24 hours. This pre-charge detention is under the supervision of the prosecutor, in violation of article 5-1-c) according to a constant case-law of the E.C.H.R since 1979 confirmed in case Medvedyev v. France (3394/03) in paragraph 61-63.
No “habeas corpus” proceeding were created to allow suspects in pre-charge detention to have the lawfulness of their detention reviewed and to be released in case their detention was deemed unlawful.
But on the 992th meeting of 5-6 June 2007, the Committee of Ministers decided to close the monitoring of the execution of the case on the ground that the delegation of French Republic communicated to the secretariat an unpublished notice of the ministry of justice to prosecutors stating “that requirements of Article 5§4 can only be satisfied by bringing detainees before an investigating magistrate or a court“.
This notice of the ministry of Justice confuses obviously article 5-4 and 5-3 of the Convention, and clearly don´t answer the clarification asked at the 987th meeting of 13-14 February 2007 (“However, it is not clearly apparent that persons thus detained may bring the matter promptly before a judge for determination of the lawfulness of their detention.”).
Today there is still no “habeas corpus” proceeding for detainees in police custody or in the cells of a tribunal, to determine the lawfulness of their pre-charge detention. This leads to numerous unlawful pre-charge detentions of up to 3 days, as demonstrated by one recent example.
The agenda of the 1100th meeting of November 30th 2010 shows that the status of the execution of the case Zervudacki v. France is “6.2 Cases waiting for the presentation of a draft final resolution.“
The Department for the Execution of Judgments didn´t answer our emails requesting the communication of the unpublished notice of the ministry of Justice.
From November 25th to 29th 1991, the applicant was tortured at a police station in Bobigny during an investigation on drug trafficking. According to him, he was assaulted physically and sexually with a weapon, and threatened with a syringe and a blowlamp because he was exercising his right to remain silent.
On September 16th 1993, the appeal court of Paris sentenced the applicant to 13 years in jail for drug trafficking. On July 1st 1999, after a lengthy investigation, the appeal court of Versailles sentenced 4 police officers for assault to suspended prison terms, and a 5th one, the leader of the group to 3 months in jail and a 15 months suspended prison term. The maximum sentence for torture is now 20 years in prison according to article 222-3 7° of the penal code and life in prison if perjury was also committed according to article 222-2 of the penal code.
On July 28th 1999, the European Court of Human Rights condemned the French Republic for violation of article 3 of the Convention due to the torture of the applicant and violation of article 6-1 of the Convention on account of the length of the proceedings. The French Republic was also condemned to pay €76,220 for personal injury and non-pecuniary damage and €17,281 EUR for legal cost. Mr. Ahmed Selmouni was represented by Me Marie-Alix Canu Bernard who was not available for comments on the resolution adopted.
On December 3rd 2009, the Committee of Ministers found satisfying in its Resolution CM/ResDH(2009)126, the creation in 2001 of a national police ethic committee (C.N.D.S) and the publication of a speech on the judgment Selmouni v. France in an annual academic magazine as general measure to prevent torture in police custody and to guarantee effective and speedy investigation on torture allegation.
Ironically, the national police ethic committee (C.N.D.S) doesn’t respect any of the recommendations of the Opinion of the Commissioner for Human Rights concerning independent and effective determination of complaints against police published on March 12th 2009. Furthermore, the self-satisfying speech published on the judgement Selmouni v. France was made by the agent of the French Republic at the ECHR : It was a violent attack against the ECHR and a minimization of the torture endured by the applicant.
In 2005 and 2009, Amnesty International published reports (EUR 21/001/2005, EUR 21/003/2009) concluding to the “effective impunity of law enforcement officers in case of shootings, deaths in custody or torture and ill-treatment” in France.
Some might argue that the most effective general measure to prevent torture in police custody is the mandatory audio and video recording of police custody facilities including interrogation rooms and the mandatory presence of the suspect’s lawyer during police interrogation.
In January 2010, the police officers of the drug investigation team of the county of Seine-Saint Denis (including Bobigny) refused to start to allow lawyers to meet their client during the first 72h of the police custody despite multiple requests of the investigating judges.
Me Marie-Alix Canu Bernard stated in an e-mail that none of the general measure taken including the creation of C.N.D.S, were according to her, effective to prevent torture.