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On January 7th 2004, the minister of state Patrick Leclercq committed upon accession to the Council of Europe, to submit to the Monaco National Council a bill on police custody (Appendix 5, 1-A) “in order to ensure the compatibility of Monaco legislation with the ECHR and its Protocols”. On October 5th 2004, Monaco became a member of the Council of Europe. On November 30th 2005, Monaco ratified the European Convention of Human Rights which entered into force the same day.
On December 26th 2007, the law 1.343 introduced articles 60-1 to 60-12 on police custody in the code of penal procedure. Until then, police custody was not regulated by any law. Under these articles, the detention of a suspect in police custody can only be ordered by a police officer (art.60-2) and is supervised by the prosecutor general (art.60-1) who can release the suspect (art.60-3). The suspect should be brought before the prosecutor general within 24 hours of his arrest (art.399) who can order orally his detention for up to 6 days pending trial (up to 4 days not including weekends and labor holidays).
On November 24th 2011, bill 894 on police custody was submitted to the National Council. The bill 894 introduced a new requirement for the prosecutor general to notify promptly the “freedom judge” of the detention of a suspect in police custody (art.2 of bill 894). But the bill 894 don’t allow the “freedom judge” to get access to the custody record, to control the conditions of detention, to rule on the lawfulness of the police custody and to release the suspect. Worse, the prosecutor general can still order the arrest of a suspect (art.157, art.261) and detain him without any of the legal safeguards of police custody (art.159). The lack of effective control of police and prosecutor general custody by a judge is a violation of article 5-1 of the Convention (judgment Medvedyev v. France (3394/03) §61).
Bill 894 doesn’t introduce any requirement to bring the suspect promptly before a judge to rule on the lawfulness of the police custody and if needed to order his detention pending trial, in violation of article 5-3 of the Convention. The prosecutor general shouldn’t perform these functions because he will prosecute the suspect (judgment Huber v. Switzerland (12794/87) §42).
Article 6 of the bill 894 confirmed the possibility to extend police custody up to 4 days on request of the prosecutor general (art.60-4). Moreover, Bill 894 doesn’t forbid in the same investigation several police and prosecutor general custody of a suspect.
In its visit of Monaco in March 2006, the Committee for the Prevention of Torture (CPT) met suspect unlawfully detained (CPT/Inf (2007)20 §30).
But Bill 894 failed to introduce a “habeas corpus” for suspect in custody in violation of article 5-4 of the Convention (judgment Zervudacki v. France (73947/01) §77). It also didn’t create “an enforceable right to compensation” for the victim of an illegal detention in police or prosecutor general custody. This is a violation of article 5-5 of the Convention.
Therefore, Monaco seems to fail to honor its commitment made in 2004 to ensure the compatibility of his legislation on police custody with the Convention. Monaco National Council will vote on Bill 894 in Spring 2012 after discussion in the law committee.
On December 8th 2009, Mr. Pierre Henry Martzloff was extradited from Morocco and subsequently detained in the infamous jail of Fleury-Merogis located 30km away from the French capital.
The gigantic prison was opened in 1968 and is the largest in the European Union with up to 3,500 inmates detained. The condition of detention were horrendous but the Court took 26 years after the first complain to find a violation of article 3 of the Convention.
On October 7th 1987, the European Commission of Human Rights dismissed the case Breguet v. France (11550/85) for lack of answer of the lawyer Me Jacques Verges. The applicant was condemned to 10 days in solitary confinement in Fleury Merogis for having written in a private letter that the chief of guards was “miserable“. He complained that his detention in the solitary confinement in Fleury-Merogis was a violation of article 3 of the Convention.
On March 8th 1988, the European Commission of Human Rights ruled in case Theron v. France (11422/85) that the condition of detention didn’t attain the threshold required by article 3 of the Convention. The applicant who was serving a sentence of 8 days in solitary confinement, was condemned to 15 more days for having written in a private letter that the solitary confinement in Fleury-Merogis was “white torture“. The applicant described his solitary confinement cell as very dirty and the food as disgusting. He complained that his mattress was very dirty without linen, and that he couldn’t take a shower and change his clothes more than once a week.
On July 4th 2006, the Grand Chamber of the Court ruled in case Ramirez Sanchez v. France (59450/00) that the solitary confinement of the applicant for 8 years in the 3 infamous jails (La Sante, Fresnes, Fleury-Merogis) was a not violation of article 3 of the Convention. The applicant complained that his cell was in terrible condition with no private toilet, and that the yard for daily exercise was nothing more than a large cage. Surprisingly, the Court even found the condition of detention in the solitary confinement unit of Fleury-Merogis in compliance (§130) with the Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules. The Court had never visited the unit.
On June 12th 2007, the Court ruled in case Frerot v. France (70204/01) that the multiple naked strip searches of the applicant in the jail of Fresnes were a violation of article 3 of the Convention (§48). The applicant complained that he was ordered to open his mouth during naked strip searches in jail of Fleury-Merogis and upon his refusal was condemned to the solitary confinement unit. Surprisingly, his lawyers Me Christophe Nicolaÿ et Me Ludovic de Lanouvelle didn’t complain about the condition of detention in the solitary confinement unit.
On September 11th 2007, the online newspaper Rue89 released a plan and pictures of cells of the solitary confinement unit of the jail of Fleury-Merogis.
On January 20th 2011, the Court found in case Payet v. France (19606/08) that the detention in the solitary confinement unit of the jail of Fleury-Merogis constituted a “degrading and inhumane treatment” (§85) and therefore a violation of article 3 of the Convention, 26 years after the first application made by Mr. Bruno Breguet in 1985.
On December 18th 2008, the daily newspaper Le Monde released an extract of a 2h30 video of the regular unit of the jail, shot clandestinely by detainees. On April 2th 2009, the state television France 2 showed a documentary on the jail with 40mn of footage from the clandestine video (see below).
In the case Martzloff v. France (6183/10), the applicant complained that his cell is very cold because of broken windows, that he have to use the toilet in front of other detainees and that the communal showers are broken. According to him, the exercise yard lacks toilet and showers and is full of dead rats bodies. These allegations are confirmed by the clandestine video and the NGO OIP. On February 1st 2011, the application was communicated to the agent of the French government with questions to be answered within 16 weeks. The applicant is not represented by a lawyer.
In 20 years and during its 11 visits to France, the CPT of the Council of Europe never visited the largest jail of the European Union (except the young offender site located outside of the main compound in 1996).
European Court of Human Rights News 