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
55b) The huiden of pio\ing the existence of efjeitise. sufficient and (;<.(.CM\j/»/t' leniedies
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
50The applicant was held in police custody Irom 25 to 29 November 1991,
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
provisional legal aid and a Court of Cassation lawyer was assigned to him immediately
57On 13 December 1993 the registry of the Criminal Division ot the Court of
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
2The applicant's ciinnrial complaint and request to join the pioceedinqs as a cixil
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
applicant at the prison The applic int made the following statements to [he doctor
58"I was arrested in the street on 25 November 1991 at about 9 a m There were
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
59swelling on the back ot the right foot and a cutaneous abrasion on the back of
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
[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
60In an order of 15 June 1993, the Bobigny investigating judge dealing with these
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
1994In a judgment of 27 Apiil 1994, the Court of Cassation decided to remove the
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)
1The applicant complains about the violence to which he was subjected by police
officers while in their custody He invokes Article 3 of the Convention
612.
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,
3He considers further that the failure to assign him a lawyer to represent him
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).
62The Commission must iherelore apply Ihe rule while having due regard to the
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
2The applicant tKo complains about (he length of (ime taken lo examine his
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
63Division, pursuant to the provisions of section 175 I ot the Code of Criminal
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
3The applicant consideis further that the failure to assign hini a lawyer to
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
64Article 6 para 3 (c) piovides that
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
65The Commission notes at the outset that it is clear from a letter of 13 December
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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