COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2003)50

concerning the judgment of the European Court of Human Rights
of 17 March 1997
in the case of Muller against France

(Adopted by the Committee of Ministers on 24 April 2003
at the 834th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgment of the European Court of Human Rights in the Muller case delivered on 17 March 1997 and transmitted the same day to the Committee of Ministers under former Article 54;

Recalling that the case originated in an application (No. 21802/93) against France, lodged with the European Commission of Human Rights on 8 March 1993 under former Article 25 of the Convention by Mr Patrick Muller, a French national, and that the Commission declared admissible the complaint that the length of his detention on remand had been excessive;

Recalling that the case was brought before the Court by the Government on 31 January 1996;

Whereas in its judgment of 17 March 1997 the Court unanimously:

- held that there had been a violation of Article 5, paragraph 3, of the Convention;

- held that the present judgment constituted in itself sufficient just satisfaction in respect of non-pecuniary damage;

- held that the government of the respondent state was to pay the applicant, within three months, 40 000 French francs in respect of costs and expenses and that simple interest at an annual rate of 3,87% would be payable on this sum from the expiry of the above-mentioned three months until settlement;

- dismissed the remainder of the applicant’s claim for just satisfaction;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention as amended by Protocol No. 11 which are applicable by decision of the Committee of Ministers to cases under former Article 54;

Having invited the government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of 17 March 1997, having regard to France’s obligation under former Article 53 of the Convention to abide by it;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state gave the Committee information about the measures taken preventing new violations of the same kind as that found in the present judgment; this information appears in the appendix to this resolution;

Having satisfied itself that on 7 August 1997, the government of the respondent state had paid the applicant the sum provided for in the judgment of 17 March 1997, and that the default interest due, that is 216,29 French francs, was paid on 18 May 1998,

Declares, after having taken note of the information supplied by the Government of France, that it has exercised its functions under former Article 54 of the Convention in this case.

Appendix to Resolution ResDH(2003)50

Information provided by the Government of France
during the examination of the Muller case

by the Committee of Ministers

Law No. 2000-516 of 15 June 2000 reinforcing the protection of the presumption of innocence and the rights of victims, which came into force on 16 June 2000 upon its publication in the Official Gazette of the French Republic, inserted a preliminary article at the beginning of the Penal Code establishing the guiding principles for criminal proceedings, including a large number of the principles listed in Articles 5 and 6 of the European Convention on Human Rights.

“Preliminary Article - I. Criminal proceedings must be fair, be conducted in the presence of both parties and preserve a balance between the rights of the parties.

Such proceedings must guarantee the separation between the authorities responsible for public prosecution and the judiciary.

Persons in similar situations who are prosecuted for the same offences must be tried in accordance with the same rules.

II. The judicial authority shall ensure that victims are kept informed and that their rights are safeguarded throughout criminal proceedings.

III. Any person suspected of or prosecuted for an offence shall be presumed innocent until his/her guilt has been established.  Any infringements of the presumption of innocence shall be prevented, compensated and/or punished under the conditions set out in law.

Such persons are entitled to be kept informed of the nature of the accusation against them and to be assisted by a lawyer.

Any coercive measures to be taken against such persons must be decided or effectively supervised by the judicial authority.  Such measures must be strictly limited to the requirements of the proceedings and be proportional to the offence as charged; they must not violate the human dignity of the person in question.

A final decision must be reached within a reasonable time on accusations against such persons.

Anyone convicted of an offence shall be entitled to appeal to another court against his/her conviction.”

In particular connection with the problem raised in the instant case, namely the duration of detention on remand, Article 137 of the Code of Criminal Procedure reaffirms the principle that detention on remand is an exceptional measure, a principle introduced in 1984, and also lays down a number of provisions to reinforce the judicial safeguards on detention on remand.

Article 137 establishes the office of Juge des libertés et de la détention (judge for civil liberties and detention) as distinct from the investigating judge. The Juge des libertés et de la détention is responsible for deciding to detain a person under examination at the investigating judge’s request, but the investigating judge remains free to decide whether or not to release a detainee.

Article 137 of the Code of Criminal Procedure also establishes the function of Juge des libertés et de la détention distinct from that of the investigating judge. The Juge des libertés et de la détention makes decisions on detention at the request of the investigating judge, but the latter may always decide to free a detainee.

Article 145 of the code of criminal procedure establishes the procedure for proceedings before the Juge des libertés et de la détention.

The Law of 15 June 2000 reinforcing the protection of the presumption of innocence and the rights of victims, as complemented by Law No. 2002-307 of 4 March 2002, also comprises provisions restricting the conditions for, and duration of, detention on remand.

In connection with the new criteria for detention on remand, the 15 June Law changed the minimum degree of gravity of charge required for remanding a person under examination in custody.

Article 144 of the Code is replaced by two Articles, 143-1 and 144, reading as follows:

“Art. 143-1 - Subject to the provisions of Article 137, detention on remand can only be ordered or prolonged in the following cases:

1. The person under examination is liable to a penalty for a serious offence;

2. The person under examination is liable to a penalty for a minor offence comprising a prison sentence of at least three years.

Detention on remand can also be ordered under the conditions set out in Article 141-2 where the person under examination deliberately fails to comply with the requirements of judicial supervision.

Art. 144 - Detention on remand can only be ordered or prolonged if it constitutes the only means of:

1. preserving items of real or circumstantial evidence, or preventing pressure from being exerted on witnesses or victims or collusion from taking place between persons under examination and accomplices;

2. protecting the person under examination, guaranteeing that he/she will remain at the court’s disposal, or ensuring the discontinuation or preventing the repetition of the offence;

3. ensuring the discontinuation of an exceptional, persistent disturbance of law and order due to the seriousness of the offence, the circumstances of its perpetration or the extent of the resultant damage.

Taking account of the direct effect given to the Convention and the case-law of the European Court of Human Rights in French law (see, in particular, Bozkurt - Social Chamber of the Cour de cassation, 14 January 1999 and judgments Nos 7688 (16 January 2001) and 3659 (16 May 2001) of the Criminal Chamber of the Cour de cassation), the Government of France is convinced that judges responsible for checking the conditions applicable to detention on remand and the extension thereof will not fail to take due account of the Strasbourg case-law when evaluating these criteria in order to avoid further violations of Article 5, paragraph 3.

In order to limit the possibilities of prolonging detention on remand, maximum lengths have been reduced for those person under examination of minor offences and introduced for those person under examination of more serious crimes.

 

Article 145-1 of the Code reads as follows:

“Art. 145-1. In cases of minor offences, detention on remand may not exceed four months unless the person under examination has already been sentenced for a serious or ordinary offence to a severe criminal penalty or a non-suspended prison sentence exceeding one year, where the person under examination is liable to a sentence equal to or less than five years.

In other cases, the juge des libertés et de la détention may exceptionally decide to prolong detention on remand for a maximum of four months on the basis of an order setting out reasons in accordance with the provisions of Article 137-3, issued following an inter partes discussion organised in accordance with the provisions of Article 145-6, the lawyer having been summoned to appear in accordance with the provisions of Article 114-2.  This decision may be renewed in accordance with the same procedure, subject to the provisions of Article 145-3, whereby the total duration of detention may never exceed one year. However, this period may be increased to two years where one of the facts constituting the offence was committed outside the national territory or where the person is being prosecuted for drug trafficking, terrorism, criminal association, procuring, blackmail or gangsterism and is subject to a minimum ten-year prison sentence.”

Law No. 2002-1138 of 9 September 2002 added a new sub-paragraph after Article 145-1, as follows: “Where it is necessary for an investigating judge’s investigations to be continued and releasing the person under examination would give rise to a particularly serious risk to the safety of persons or property, the investigating chamber may, as an exceptional measure, prolong the two-year duration provided in the present Article by four months. The investigation chamber before which the person under examination appears by law, having been seised by the Juge des libertés et de la détention of an order giving reasons pursuant to the procedures set out in the last sub-paragraph of Article 137-1, shall decide the matter in accordance with the provisions of Articles 144, 144-1, 145-3, 194, 197,198, 199, 200, 206 and 207.”

A new indent worded as follows has been inserted after the two first indents of Article 145-2:

“The person under examination cannot be remanded in custody for more than two years where the penalty incurred is less than twenty years’ imprisonment, and more than three years in all other cases.  The respective periods increase to three and four years where one of the facts constituting the offence was committed outside the national territory.  The period is also four years were the person is being prosecuted for several of the serious offences mentioned in Books II and IV of the Criminal Code or for drug trafficking, terrorism, criminal association, procuring, blackmail or gangsterism.”

The Perben Act added a new sub-paragraph after Article 145-1, as follows:

“Where it is necessary for an investigating judge’s investigations to be continued and releasing the person under examination would give rise to a particularly serious risk to the safety of persons or property, the investigating chamber may, as an exceptional measure, prolong the two-year duration provided in the present Article by four months. The investigation chamber before which the person under examination appears by law, having been seised by the Juge des libertés et de la detention of an order giving reasons pursuant to the procedures set out in the last sub-paragraph of Article 137-1, shall decide the matter in accordance with the provisions of Articles 144, 144-1, 145-3, 194, 197,198, 199, 200, 206 and 207. This decision may be renewed once, subject to the same conditions and pursuant to the same procedures.”

Finally the law introduced provisions to prevent persons having parental authority over a child of less than 10 years from being held in detention on remand.

The first indent of Article 145-5 of the Code of Criminal Procedure reads as follows:

“Persons who have pointed out during their interviews with the investigating judge prior to referral to the Juge des libertés et de la détention that they hold exclusive parental authority over a child aged sixteen or under who is resident at the person’s home can only be remanded in custody if one of the departments or persons listed in the seventh indent of Article 81 has first been instructed to identify and propose appropriate measures to prevent any risk to the child’s health, safety and morality and/or any serious threat to the conditions of his/her education.”

The French Government considers that all these measures will prevent the repetition of any future violations of the kind noted in the instant case and that it has consequently fulfilled its obligations under former Article 54 of the Convention.