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In 2004, Ms. A.Y arrived from Guinea to claim asylum. She alleged to have been detained, tortured and raped by military officers in 2003 due to her political activity in U.F.R party. In May 2005, she moved in with her partner a EU citizen from Netherlands. In 2006, she suffered an miscarriage which ended her pregnancy. On June 4th 2009, Ms. A.Y and her partner registered a civil partnership (PACS)with the intent to get married at a later date.
On May 2nd 2008, the national court of asylum (CNDA) rejected her appeal on the decision of the asylum officers of OFPRA to deny her asylum. On May 5th 2009, the prefect in Annecy ordered her deportation to Guinea due to her “unlawful” stay. On May 15th 2009, Ms. A.Y filed an application to the ECHR on the ground that she will be submitted to torture (art.3), separated from her partner (art.8) and not able to get married (art.12) if deported. The French government suspended the deportation order following request from the E.C.H.R (art.39).
The French government never transposed the articles 2-2-b) and 3-2-b) of the directive 2004/38/EC in national law (code of migration and asylum). These articles allow registered partner and partner in durable relation with a EU citizen to obtain a 5 years residence card upon registration. The deadline of the transposition of the directive 2004/38/EC was April 30th 2006. On July 25th 2008, the European Court of Justice ruled in case Metock (C-127/08) that any EU citizen’s family member have legal status under the directive 2004/38/EC irrespective of the lawfulness of his entry or stay before becoming a family member (99). The Court added an unlawful stay before becoming a family member can’t be a ground for deportation of the family member (97).
In its observation to the Court, the French government didn’t allege that the personal conduct of Ms. A.Y represents any “threat affecting one of the fundamental interests of society” . But it stated if the applicant is deported to Guinea, the couple could live there.
In its decision of October 11st 2011, the Court found that the deportation order to Guinea was in “accordance with the law“. On the contrary, the deportation order on the ground of “unlawful stay” (art. L511-1 of the code of migration and asylum) was taken in violation of articles 3-2-b) and 27 of the directive 2004/38/EC and the ECJ judgment Metock (C-127/08). The Court added that from May 2005 to April 2009, the couple couldn’t have a “legitimate expectation that right of residence would be granted to the applicant“. On the opposite, the applicant should have a legitimate expectation that the French government will respect the directive 2004/38/EC and the case-law of the European Court of Justice, and acknowledge her right of residence.
Finally, the Court ruled the application inadmissible as manifestly ill-founded on the surprising ground that if Ms. A.Y is deported to Guinea her EU citizen partner could live with her. But there is no provision under the Guinean immigration executive order 94/059 to grant an immigrant visa and a residence card to the partner or spouse of a citizen of Guinea. On the opposite, Ms. A.Y could live with her partner in any of the 27 countries of the European Union under articles 2-2-b), 3-2-b) and 7 of the directive 2004/38/EC.
This decision A.Y v. France (25579/09) raises serious concerns about the respect of the European Union Law and the case law of the European Court of Justice, by the European Court of Human Rights. The applicant was represented by Me Michele Blanc (Annecy).
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 July 5th 1950, Mr. Raymond Mis and Mr. Gabriel Thiennot were sentenced to 15 years of hard labor for the murder of an employee of a wealthy landowner. They claimed to have been tortured by military police officers (gendarmes) during 6 days until they signed a written “confession“.
In 1954, the French president pardoned them and they were released from prison. They both served more than 7 years in prison.
On November 1st 1988, the protocol no 7 to the Convention for the Protection of Human Rights and Fundamental Freedom entered into force. Article 3 of the protocol no 7 states :
When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
The applicants made 5 unsuccessful attempts to have their conviction reversed. Each time, they were not authorized by a commission to bring their case to the supreme court (Cour de cassation) competent under articles 625 and 626 of the code of penal procedure to reverse the conviction and award damages.
On September 12th 2007, the applicants submitted their case to the E.C.H.R arguing of the violations of articles 6 and 13. Me Jean-Paul Thibault represented both applicants.
On May 12th 2009, Judge Jungwiert (Czech Republic), Judge Berro-Lefevre (Monaco) and Judge Villiger (Liechtenstein) ruled their application inadmissible under article 35-3 of the Convention on the ground that the application was “manifestly ill-founded“.
According to the Court, the proceeding before the commission was not related to the determination of any of the civil rights and obligations of the applicants or of any criminal charge against them.
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.