SELMOUNI v. FRANCE

Application no. 25803/94 · Delivered 1996-11-25 · ECLI:CE:ECHR:1996:1125DEC002580394 · Languages: EN · EN · FR · SL

Application no.
25803/94
Delivered
1996-11-25
Respondent State
FRA
Conclusion
Partly admissible;Partly inadmissible
Convention articles
3, 6, 6-1, 6-3, 6-3-c, 35, 35-1
Original
HUDOC ↗
Summary
Preparing…

APPLICATION N° 25803/94

Ahmed SELMOUNI v/FRANCE

DECISION of 25 November 1996 on the admissibility of Ilie application

Article 3 of the Convention Allegations of ill-lieaiment inflicted dunng police

iintody (Complaint detluwd udmissibU')

Article 6, paragraph 1 of the Convention Lenqth of ciiniinal pioceedings with

application to join the pioceedmgs as a civil patty \eekini> damages, still pemling

(Complaint declaied adniissthle)

Article 6, paragraphs 1 and 3 of the Convention

u) The question whethei a tiiul is in confoimity with the leqiiiiements of Article 6 paia I must he considewd on the basis of an examination oj (he pioceedmgs as

a nhole and not one isolated aspect This pnnciple applies both to the specifii

\>uaiantec\ iindei paun^iaph ^ and to (he concept ojafaii tnal under paia^iaph I

of Article 6

h) Alleqations offailuie to assign a tawvei to assist the applicant dunng the judicial investigation and bejoie the Couit of Appeal

Article 26 of the Convention

a) Exhaustion of domeslit icnwdies lequues exhaustion of siah lemedies as lelute to the breaches of the Conwnlion alleged and at the same time can piovide effective

and sufficient lediess An applicant does not need (o exeicise leniedies which,

although theoieticalh of a natuie (o constitute letnedies do not in lealily offei anv

chance of led/essim; the allei^ed hieach

lies upon the State unokini^ non-exhaustion of domestic leniedies

c) This pioMSion must he applied with some degiee of flexihilily the context and without excessive foimalism

with due legaid to

d) Domestic lemedies have been exhausted if, befoie the hiqhesl domestic authority, the applicant has submitted the complaint he puts befoie the Commission

e) W'heie the national authoiities leniain passive in the fate of senous alleqations of misconduct oi mfiniion of haitn h\ State agents this is a iele\a>it ciitenon in

ahsohing the applicant fioni the obligation to exhaust domestic

lemedies

Ciicumstances in which the speed with which a lemedy can be exercised mav be

a Ielevant factor in assessim^ its effectiveness

Complaints lelafinq to violence (o w Inch (he applicant was alleged!) subjected bv

police offueis while in then custody and to the lein>th of ciiminal

pioceedmgs

brought aftei the applicant hud filed a ciinnnal complaint with a icquest to join the

pioceedinqs as a civil parts seeking damaqes Havuiq leqaidto the senousness of

the allegations and the fact that no cme has been chaiged five yeais latei. the

applicant has satisfied the lule of exhaustion of domestic ivniedivs

THE t A C i S

The applicant, of Dutcli and Moroccan nationahly, born in 1942, is currently m

Monimedy Prison

The facts, as submitted by the parties may be summarised as follows

I

Criminal pioceedmgs

a{;aiii\t the applicant

On 21) November 1991 the police arrested G T . D K and his girlfriend H C in

connection u ith a drug trafficking investigation D K confessed volunlarily and told

the police that he had bought his heroin in Amsterdam from a certain "Gaby", who had

helped him conceal it in order to bung it into France ovei a number of trips He gave

the police a telephone number in Amsterdam which enabled them to identify the

applicant

On 25 November 1991 ilii; applicant was arrested in a surveillance operation of

a hotel in Pans The appln-ani. who was recognised by D K and H C , explained that

he had had business dealings wiih D K in the clothes trade He denied any involvement

in drug trafficking

whereupon he was brought before an investigating judge in Bobigny. Mr de L , who

charged him with offences under the drugs legislation and remanded him in custody

The invesiigalingjddge extended the detention on remand bv orders of ) 9 March

and? July 1992

In an order of 8 September 1992. the investigating judge committed the applicant

for tnal before the Criminal Court and ordered him to be kept in detention on remand

Dunng the investigation, the President of the Bar Council assigned a lawyer lo act for

the appikant and the applicant also relamed the serv ices of three other lawyers of his

own choice

Bobigny Criminal Court hrsl convened on 16 October 1992 and adjourned the

case to a hearing on 30 November 1992 at which the applicant was represented by two

lawyers The applicant argued that the proceedings were void on the ground that the

warrants issued by the invcstig iting judge, whn.h had enabled the police to arrest him,

were not on the case hie

In a judgment of 7 December 1992 Bobigny Criminal Court dismissed the

application for the proceednigs to be declared void, noting that a certihed copy of the

WiUrants had l>een attached to the hie The court sentenced the applicant to fifteen

years' imprisonment to perniaiiLiU exclusion trom French territory and regarding the

civil action by the customs authorities ordered him to pay. jointly and severally with

his CO accused an aggregate fine of twenty-four million francs I he applicant appealed

On 3 September 1993 he sent a letter lo the President of the Court of Appeal

setting out his grounds of defence The letter began as lollov^ s I write to inform you

that, as I cannot afford a lav,y<„r 1 have no alternative but to attend the hearing before

Pans Court ot Appeal on 16 September 1993 alone I wanted to send your Honour this

letter before appearing befoie you

In a judgment of 16 September 1993, Pans Court of Appeal noted that the

applicant had appeared without legal representation and that he did not wish to be

represented It reduced the prison seiileiice to thirteen years and upheld the remainder

of the lower court judgment Dunng the hearing, one of the applicant s co defendants,

A M , admitted the charge and iniphcated the applicant

The applicant appealed on points of law On 7 October 1993 he was granted

provisional legal aid and a Court of Cassation lawyer was assigned to him immediately

Cassation informed the applicant that his personal pleadings had arrived at the registry

on 29 November 1993 and that they had been attached to the case file In diese

pleadings, the applicant criticised the failure to provide him with legal representation

dunng the investigation and betore the Court of Appeal and denied having committed

the offence of which he had been convicted

On 12 January 1994 the applicant's officially assigned lawyer sent him a copy

of the grounds of apjjeal drafted on his behalf These grounds invoked Article 6

paras 1 and 3 of the Convention, in that the Criminal Court had dismissed the

application for the proceedings to be decUu-ed void, despite the fact that no certified

copy of the warrants had been produced during the proceedings

On 10 February 1994 the applicant was definitively aw.irded legal aid

In ajudgment of 27 June 1994. the Court of Cassation dismissed the appliLant's

appeal, on the grounds

' that neither the judgment under appeal, nor the appell uu s grounds of appeal,

show that he had raised, before the Court of Appeal, the argument submitted to

the lower court, namely that the proceedings were void , in the circumstances,

and given that contrary lo the appellant's allegations both parties were given

an opportunity to comment on the document in question on appeal, without this

giving rise to any dispute this ground of appeal, which is new and has no basis

in fact cannot be allowed

party seeking damaqc s

From 25 to 29 November 1991 the applicant was held m police Lustody and

questioned by the police officers of the SDPJ 93 in Bobigny

On 29 November 1991 a doctor exanuned the applicant while he was in police

custody and noted the piesence of iraumala injuries pariicuLirly under Ins eyes and on

his arms, back, chest and thigh

When the applicant first apjieared before the Bobigny investigating judge on

29 November 1991, the judge on his own initiative, appointed an expert to examine

him

On 2 December 1991 the applicant was exanuned by Dr N of the medical

service of Fleury-Meiogis Pnson This doctor drew up a medical certificate noting

extensive bruising on the chest and thighs and severe haematomas round the eyes"

The doctor added 1 laemotomas ( illegible word ) Says sight impaired m left eye

On 7 December 1991, a medical examiner, Dr G . the expert attached to Pans

Court of Appeal appointed by the investigating judge on 29 November, examined the

applicant at the prison The applic int made the following statements to [he doctor

no problems at that stage I was taken to my hotel One of the plainclothes

police officers then hit me in the area of my left temple I was then taken to

Bobigny police station At about 10 a m 1 was taken up to the first floor where

about eight people staning hitling me I was made to kneel down An inspector

pulled me up by my hair Another police officer hil me repeatedly on the head

with an instrument which might have been a baseball bat Another one kept

kicking me and thumping me in the back The interrogation continued for about

an hour In the night, I asked to be examined I was taken to hospital where I

had head and chest X-rays I was hit again at about 9 p m the following day

dunng a further interrogation and this went on until 2 a m When 1 arrived at

Fleury. 1 underwent a medical examination '

The doctor noted m his lepoit

-suborbital haematoma iwo centimetres below the left lower lid, purplish,

almost completely healed

thin, linear scar approximaieK 1 cm long continuing the line of the left

eyebrow

right suborbital hacmaionia, almost completely healed

multiple cuta leous abi asions (six of which are large), almost completely healed,

on the left upper limb

two 5 cm linear cutaneous abi asions - possibly scratches - on the right upper

limb

0 5 cm cutaneous lesion on the back of the right hand

haematoma on the posterior part of the chest in the right hand infraspinous

region

-haematoma m the right dank region

severe (10 cm by 5 cm) haematoma on the left lateral pait of the chest

-three haematomas on the left flank

severe (5 cm by 3 cm) haematoma on the anterior pait of the chest purplish,

in the epigastric region

haematoma m the right prehepatic region

haematoma on left rib t.age 5 cm below the nipple

-5 cm by 3 cm haematoma on the left lateral part of the axillary line

haematoma in the right subclavian region

haematoma on the right buttock

-10 cm bv 5 cm haematoma on the left buttock

-5 cm by 1 cm hnedt liaemaioma on the anlerocxternal pdri of the left thigh

cutaneous abrasion con esponding to a wound now healing, on the anterior part

of the right ankle

the fool

5 superficial wounds, now healing, on the anteroinferior part of the right leg

-cutaneous abrasions and bruised swelling on the back of the first two left

metacarpals

The patient states that, on his arnval at Fleury, he was treated with skin cream

and given painkillers

No injuries to the scalp or left eyeball

The doctor concluded his report as follows

CONCLUSION

[The applicant] states that he was subjected to ill-treatment while in police

custody The traumatic injuries to his cutaneous integument correspond to the

period of police custody

These injuries arc healing well

This report was attached to the investigation file and given the reference number

"D 207"

In a letter subsequently sent to the President of the Criminal Court dealing with

the charge under the drugs legislalion, the applicant stated that he had been raped with

a baseball bat and that a police inspector had urinated over him

When questioned by officers of the General Inspectorate of the National Police

on I December 1992 at fleuiy Merogis Prison, the applicant confirmed his statement

and gave fuilher details ot what had happened At the end ot hi'- interview, the

applicant said "1 am filing a cnmnial complaint against the police officers"

The applicant regularly attended Hotel Dieu Hospital for treatment

On 22 February 1993 the Bobigny public prosecutor requested an investigation

to be opened into charges against persons unknown of unla^AfuI wounding with a

weapon of a defenceless person and ot indecent assault The applicant and A M , one

of his CO defendants in the cnminal case, applied to join the proceedings as civil paities

seeking damages on 26 Maich and 5 April 1993 respectively

At the same time, on 15 March 1993, the applicant had filed a criminal

complaint with a request to join the proceedings as a civil party of ' wounding resulting

in toLil unfitness for woik for more than a week, assault with a weapon namely a

baseball bat indecent assault, giicvous bodily harm causing permanent disability, in

this case the loss of one eye and rape by two or more accomplices all of which

offences were commuted between 25 and 2*^ November 1991 by police officers in the

exercise of their duties

complaints, Mrs M , ordered them to be joined

The investigating judge issuedanumber of warrants to the General Inspectorate,

which then heard evidence from numerous police officers The judge heard evidence

from the applicant on 14 May 1993, instructed dn expert on 9 June 1993 and served

the expert's medical report on the parties on 15 September 1993

The investigating judge questioned the civil parties again on 6 Decemt>er 1993

after the warrants had been returned on 2 December 1993 The civil parUes were

questioned again on 10 February 1994 when an identity parade was organised in order

to identify the police officers in question

With a view to charging the police officers identified by the civil parties, the

investigating judge sent the file to the public prosecutor's office on 1 March 1994

The Bobigny public prosecutor referred the matter to the Pans public prosecutor

who, in turn, referred it to the Couii of Cassation

The applicant was assigned a (aivyer under (lie legal aid award of 26 January

Bobigny investigating judge from the case and referred it to a judge attached to

Versailles (iihunal de qiande instance m the interests of the proper administration of

justice

On 22 June 1994 a Versailles investigating judge was appointed

In an order of 22 September 1995. the investigating judge appointed an eye

specialist

On 7 November 1995 the applicant underwent an operation on his lett eve He

was operated on again on 14 August 1996

To date, the applicant has no information on the investigation being conducted

in Versailles He has still not t)een summoned and the investigating judge has not

charged anyone

COMPLAINTS (Extract)

officers while in their custody He invokes Article 3 of the Convention

The applicant also complains about the length of time taken to examine his

criminal complaint and application to join the proceedings as a civil party seeking

damages. He invokes Article 6 para 1 of the Convention,

during the judicial inve.stigation and before the Court of Appeal constitutes a violation

of Article 6 paras 1 and 3 (c) of the Convention

THE LAW (Extract)

officers white in their custody He invokes Article 3 of the Convention which provides

that:

"No one shall be subjected to torture or to inhuman or degiading treatment or

punishment."

The icspondent Government raise an objection on the ground that the applicant

has not exhausted domestic remedies, since the criminal investigation is still being dealt

with by the Versailles investigating judge

The applicant considers that he has no means of expediting the procedure and

complains tiiat no progress has been made with his case since it was transferred to

Versailles, despite the fact that it is based on substantial evidence supporting his

allegations

The Commission lecalls ihai ihe only remedies which Article 26 of the

Convention requires to be exhausted are those that relate lo the breaches alleged and

at the same time are available and sufficient. An applicant does not have lo exhaust

remedies which, although iheoielically effecdve, in reality offer no chance of redress

of the alleged violations It is fuilher established that it falls to the State invoking the

exhaustion of remedies rule to prove that the existence of such remedies i^ sufficiently

certain not only in theory but also in practice, failing which they will lack the requisite

accessibililv and effectiveness (Eur Court HR. de Jong, Baljet and Van den Brink

judgment of 22 May 1984, Seiies A no. 77, p 19. para. 39, Akdivar and Others

V. Turkey of 16 September 1996. Reports 1996, to be published).

The applicant can establish that the facts of the case or certain special

circumstances absolve him from the obligation to exhaust domestic remedies. One of

the relevant factors may be coiistifuled by the national authorities retn.nning totally

passive in the face of senous allegalions of misconduct or inffiction of harm by State

agents, for example wheie they have failed to undeitake investigations or offer

assistance (Eur Court HR. the above-mentioned Akdivar and Others v Turkey

judgment) or wheie the time taken to exhaust a remedy leads to the observation that

It IS not effective (see, intei alia. Nos. 15530/89 and 15531/89, Milap and Mufiuoglu

V Turkey. Dec 10 1091. DR 72, p 169).

context (Eur Court HR, VMX Oosterwijck v Belgium judgment of 6 November 1980.

Senes A no 40, p 18. para 35 the above mentioned Akdivar and Others v Turkey

judgment), as Article 26 has to be applied with some degree of flexibility and without

excessive formalism (Eur Court HR. Cardot v France judgment of 19 March 1991,

Series A no 200, p 18 para i4)

In the instant case, the Commission notes that a number of measures were

earned out while the proceedings were under the jurisdiction of Bobigny tribunal de

giande instance However, the Commission notes that since 27 April 1994, the date on

which the investigating judge attached lo that court was removed from the case and it

was transferred to Versailles tnbunal de giande instanci, die proceedings have not

progressed It notes, in paiticular that five years after the events no one has been

charged, despite the fact that the police officers accused by the applicant have been

identified

Having regard to the seriousness of the applicant's allegations and the length of

time which has elapsed since the events look place, the Commission considers that the

authorities have not taken all positive measures required in the circumstances to bring

the investigation to a rapid comlusion

Consequently the Government's argument that the applicant has failed to

exhaust domestic remedies c iiinot be allowed It follows that the applicant has satisfied

the exhaustion of domestic remedies requirement, in accord nice with Article 26 ot the

Convention

Having examined the parlies' submissions, the Commission considers that this

complaint raises questions of fact and law which cannot t)e resolved at this stage of the

examination of the case, but require an examination of the merits It cannot therefore

be declared manifestly ill founded pursuant to Article 27 para 2 of the Convention No

other ground for declaiing it inadmissible has been established

complaint and request to join the proceedings as a civil parly seeking damages He

invokes Article 6 para 1 ot the Convention, which piovides that

In the deteimmation

ot any criminal charge against bim, everyone is entitled

to a fair

hearing williin a reasonable time by [an]

tribunal

The Government considei as a preliminary point, that the proceedings about

which the applicant complains go back only to 15 March 199^^ the date on which he

filed a criminal complaint and leques; to join the proceedings as a civil party seeking

damages

In the first place the Goveiiimeiit raise the objection that the applicant has tailed

to exhaust domestic remedies They consider that from 15 March 1994, the applicant

could have requested the investigating judge to commit the case for trial and that

should the judge have refused the applicant could have applied lo the Indictments

Procedure The Government go on to point out thai the applicant could also have

requested any investigative measuie which he deemed appropriate in accordance with

the provisions of sections 81 and 82 1 of the Code ol Criminal Procedure

The Government submit in the alternative, that the complexity of the case

justifies the length of the proceednigs They consider, moreover, that the investigation

in Bobigny was conducted uninterruptedly until 1 March 1994 and that, thereafter, the

case was transferred to another court m the interests of the proper administration ot

justice, as the police officers in question regularly worked with Bobigny public

prosecutor's office

The applicant notes that he expressly lodged a criminal complaint on 1 Decern

ber 1992, the date of his interview with the General Inspectorate of the National Police

He notes that this remedy is available under French law He specifies that he

subsequently filed a criminal complaint with a request to join the proceedings as a civil

party in order to ensure that the proceedings would progress He notes, moieover, that

he was ultimately vindicated by Bobigny public prosecutor's office which began an

investigation into Ihe allegations

As regards the possibility ot requesting the investigating judge to commit the

case for trial, the applicant noles that, m his case this would have obliged the judge

to discontinue the proceedings, since no one has >el been charged The case cannot

therefore be committed for tnal

As regards the complexity of the case and its transfer to another court, the

applicant notes that the Bobigny investigating judge was not removed from the case

until more than two and a half years after the investigation had started and that, to date,

no one has been charged

Having regard to its decision to reject the objection raised by the Government

regarding the complaint under Article 3 of the Convention, tlie Commission considers

thai the objection raised regarding Article 6 para 1 must also be rejected It follows

that the applicant has complied with the exhaustion of domestic remedies rule, in

accordance with Article 26 of the Convention

Having examined the panics' submissions, the Commission considers that this

complaint raises questions of fact and law which cannot tie resolved at this stage of the

examination of the case, but require an examination on the menls It cannot therefore

be declared manifestly ill founded pursuant to Article 27 para 2 of the Convention

No other ground for declaring it inadmissible has been established

represent him during the judicial investigation and before the Court of Apj,wal

constitutes a violation of Article 6 paras 1 and 3 (c) of the Convention

Everyone charged with a criminal offence has the following minimum rights

choosing or it he has not sufficient means to pay for legal assistance, to be

given It free when the interests of justice so require

The Government raise an objection on the ground that the applicant has failed

to exhaust domestic remedies They submit that the applicanl did not submit this

complaint to the Court of Cassation either through his officially assigned lawyer or his

own written pleadings which he has not proved were sent to the Court of Cassation

In the alternative, the Government submit that the applicant was represented by

lawyers right from the investigation stage and that these lawyers were duly authorised

to communicate freely with him and were summoned by the investigating judge The

Government note that the applicant thus had the assistance of an officially assigned

lawyer and of three other lawyers contacted and hired by the applicant himself The

Government go on to point out that two of them were present at the hearing betore the

Criminal Court

As regards the proceedings before the Court of Appeal the Government consider

diat the applicant is entirely icsponsible for his lack of legal representation since,

having informed the President of the Court that he would be appearing alone at that

hearing he expressly indicated al the hearing that he did not want legal assistance as

can be seen from the judgment of ihe Court of App>eal The Government note that the

applicanl was nonetheless given a fair opportunity lo addrc-s the court

Hie applicanl notes hisl of all that, contrary to the Government's contention, the

Court of Cassation expressly acknowledged receipt of his written pleadings in a letter

of 13 December 1993 In that leitei. the senior registrar told him that his pleadings had

reached the court registry on 29 November 1993 and that they had been attached to the

case-file He considers that he has theiefore complied with the exhaustion of demesne

remedies rule

The applicant points out fuither that the lawyer assigned to represent him dunng

the investigation was always absent and never appeared He explains that it was only

after selling property he owned in the Netherlands that he was able to instruct other

lawyers

As regards the proceedings betore the Court of Appeal the applicant considers

that his letter to the Piesideiit of that court contained an implicit request for a lawyer

to be assigned He considei s that it is dilficull to know in what conditions the he inng

was held and that in aii) event, he complained of the lack of representation in his

appeal on points of law

1993, signed by the Senior Registrar of the Criminal Division of the Court of

Cassation, that the applicant's own wiitten pleadings were received and attached to his

hie on 29 November 1993 The applicant expressly raised this complaint in those

pleadings Consequently, the lespondent Government's objection cannot he allowed

On tlie merits, the Commission recalls that fairness is assessed on the basis of

an examination of the pioceedmgs as a whole and not one isolated aspect This

principle applies both to the specific guarantees under paragraph 3 and the concept of

a fair trial contained m Article 6 paia 1 of the Convention

In this case, the Commission notes that during the investigation the applicant had

the benefit of a lawyer assigned by the President of the Bar Council and that, in view

of the negligence ot that lawyer tor which the lawyer alone is responsible and not the

judicial authorities (see Eui Couil MR. Kamismski v Austria judgment of 19 Decern

ber 1989, Series A no 168, p 33, paia 65) he hired three other lawyers of his own

choosing Two of them then lepiesented him at the hearing before Bobigny Cnmmal

Court

As regards the pioceedmgs befoie Pans Couit of Appeal the Commission notes

that the applicant did not apply for an officially assigned lawyer It notes moreover,

that there is nothing m the lettei to the Piesident of the Couit of Appeal to indicate that

the applicant implicitly requested the appointment of a lawyer, especially as the

judgment of the Couit of Appeal shows clearly that he expressly declined the assistance

of a lawyer at the beginning ot the lieai iiig The Commission notes additionally that the

applicant subsequently had no ditticulty in obtaining, at his request, legal aid for his

appeal to the Court of Cassation

Having regard to the foiegoing, the Commission consideis that the proceedings

as a whole, were fair

It follows that this complaint must be rejected as being manifestly ill-founded,

pursuant to the provisions ot Aitiele 27 para 2 of the Convention

66

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