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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 January 16th 2000, Ms. Sonja Suder and her partner Mr. Christian Gauger were arrested following an extradition request from Germany for an investigation on crimes committed for political reasons from 1975 to 1978. The couple have been living in France since the 1980s. On March 22th 2000, they were both released.
On March 28th 2001, the investigation chamber of the court of appeal of Paris ruled against the extradition of the applicants to Germany on the ground that the crime committed from 1975 to 1978, could not longer be prosecuted under French statute of time limitation.
On October 30th 2007, the applicants were again arrested following a new request from Germany for the same investigation on crimes committed for political reasons from 1975 to 1978. On November 14th 2007, Mr. Gauger was released from thejail of La Santé, and on November 28th 2007, Ms. Suder was released from jail of Fresnes.
On February 25th 2009, the investigation chamber of the court of appeal of Paris ruled in favor of the extradition of the applicants to Germany. On May 27th 2009, the supreme court rejected the appeal from Ms. Suder (09-81731) and from Mr. Gauger (09-81732).
On July 29th 2009, the prime minister signed a decree of extradition for both applicants. On December 3rd 2010, the administrative supreme court rejected the appeals of both applicants (334683 and 334684) on the decree of extradition.
On October 22th 2010, the applicants filed two applications Gauger v.France (61393/10) and Suder v. France (61467/10) with the E.C.H.R arguing that the extradition of Ms. Suder (77 years) and Mr. Gauger who suffered a brain stroke in 1997, will be a violation of article 2,3 and 8, and that the new ruling on the new request for the extradition of the applicants was a violation of article 6-1 and article 4 of protocole 7. The applicants are represented by Me Irene Terrel (Paris).
In December 2010, the Court rejected the application for suspension of the extradition proceeding (art.39). On September 14th 2011, the applicants were arrested and extradited to Germany to be detained in prison.
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 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).