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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 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 April 24th 1983, Mr. Pierre Atallah a Lebanese lawyer, is shot dead by several French soldiers of the FINUL in unclear circumstances. An investigation is done by the French military police and another one by the Lebanese military police.
In 1999, the family discovered evidence contained in the Lebanese military police report which contradicts the findings of self-defense made in the French military police investigation.
In March 2001, the family filed at the tribunal of Paris, a civil lawsuit against the French minister of defense. On July 31th 2003, the court dismissed the case, claiming to be incompetent. On December 16th 2005, the appeal court of Paris dismissed the appeal. On May 10th 2007, the supreme court (Cour de cassation) rejected their claim (case 06-12532).
On November 9th 2007, the applicants filed their case with the E.C.H.R arguing a violation of article 2 and 6-1 of the Convention. .On November 4th 2009, the case was communicated to the French government. The applicants are represented by Me Bertrand Favreau (Bordeaux).
Update :
On August 31st 2011, the Court ruled the application inadmissible on the ludicrous ground that the applicants should have filed their application with the Court within 6 months of…a meeting with the Lebanese military police on April 24th 1983. The Court also concluded that the applicants couldn’t hope that the civil lawsuit in French courts the death will bring a “new light to the case“.
European Court of Human Rights News 