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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.
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 March 13th 2010, S.C is placed in police custody in Liege and interrogated by police officers on a murder charge. She is not allowed to receive any legal assistance from a lawyer. On March 14th 2010, the applicant is interrogated by an investigating judge of the tribunal without any legal assistance. Belgium law didn’t authorize suspect in custody to receive any legal assistance at this stage of the investigation.
On June 3rd 2010, the investigation chamber of the appeal court of Liege refused to suppress transcripts of these interrogations.
On December 3rd 2010, the applicant submitted his case to the European Court of Human Rights arguing that lack of legal assistance in custody was a violation of articles 5-1, 6-1 and 6-3 of the Convention. The applicant is represented by 3 lawyers of Defenso, Mr. Marc Neve, Ms. Sandra Berbuto and Ms. Estelle Berthe. On May 4th 2011, the application was communicated to the agent of the Belgium government with questions to be answered within 16 weeks.
On July 10th 2001 around 6pm, Mr. Yassine Darraj a juvenile of 16 years old, was stopped in Bois-Colombes by police officers for an identity check. He volunteered his identity but was brought nevertheless to the police station of Asnieres-sur-Seine.
There he was arrested without charge. According to the applicant, he was strangled, beaten in the back, insulted because he refused to be handcuffed to a bench. He was then handcuffed hands behind his back and taken to a small corridor where he was beaten in the head and between the legs by 3 police officers.
Around 7pm30, he was transferred to the emergency room of Hospital AP-HP Beaujon in Clichy-la-garenne. An emergency surgery had to be performed during the night and his right testicle was ablated. In July 2002, the applicant was diagnosed with post-traumatic syndrome disorder (PTSD).
On September 27th 2006, the appeal court of Versailles condemned two police officers for unintentional assault (art. 220-20 of penal code) to a fine of 800 euros each. Under article 222-10 of the penal code, mutilation by police officer is punishable by up to 15 years of jail. On February 22th 2007, the legal aid office of the supreme court (Cour de cassation) rejected the application for an appeal. No disciplinary action were taken against the 2 police officers.
On August 3rd 2007, the applicant filed his application with the E.C.H.R arguing that the assault by the police officers resulting in mutilation and post-traumatic syndrome disorder amounted to torture and was a violation of article 3 of the Convention. He added that his detention at the police station was a violation of article 5-1-d) of the Convention.
On June 17th 2009, the application was communicated to the agent of the French Republic with questions to be answered before 16 weeks. On November 5th 2009, the agent submitted his observation to the Court. On December 21th 2009, the applicant replied. The applicant is represented by Me Eric Charlery (Coblence & Associes).
On November 4th 2010, the Court found that the mutilation of the applicant amounted to an inhumane and degrading treatment and a violation of article 3 of the Convention. The Court didn’t examine the allegation of violation of article 5-1. The court condemned the French Republic to pay €15,000 of damages and €4,000 for legal fees to the applicant.
On April 1st 2004, the Court found also a violation of article 3 of the Convention in a similar case (Rivas v. France (59584/00)). On January 14th 1997, Mr. Giovanni Rivas a juvenile of 17 years old, was ablated 2/3 of his testicle during an emergency surgery, following an assault by a police officer at the main police station of Noumea. On March 2nd 1999, the appeal court of Noumea acquitted the police officer charged with assault on the ground of self-defense.
On September 15th 2010, the Committee of Ministers close the examination of the case Rivas v. France with 35 others case in a single resolution ResDH(2010)122, by stating that the general measures described in infamous resolution CM/ResDH(2009)126 will prevent further violation of article 3 of the Convention.
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.
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.