Lexploria

In the case of Muller v. France (1),

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention") and the

relevant provisions of Rules of Court A (2), as a Chamber composed of

the following judges:

Mr R. Ryssdal, President,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mr N. Valticos,

Mr R. Pekkanen,

Sir John Freeland,

Mr B. Repik,

Mr E. Levits,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 30 November 1996 and

18 February 1997,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 13/1996/632/816. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2. Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only

to cases concerning States not bound by that Protocol (P9). They

correspond to the Rules that came into force on 1 January 1983, as

amended several times subsequently.

_______________

PROCEDURE

1. The case was referred to the Court by the French Government

("the Government") on 31 January 1996, within the three-month period

laid down by Article 32 para. 1 and Article 47 of the Convention

(art. 32-1, art. 47). It originated in an application (no. 21802/93)

against the French Republic lodged with the European Commission of

Human Rights ("the Commission") under Article 25 (art. 25) by a

French national, Mr Patrick Muller, on 8 March 1993.

The Government's application referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby France recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the application was to obtain a decision as to whether the

facts of the case disclosed a breach by the respondent State of its

obligations under Article 5 para. 3 of the Convention (art. 5-3).

2. In response to the enquiry made in accordance with Rule 33

para. 3 (d) of Rules of Court A, the applicant stated that he wished

to take part in the proceedings and designated the lawyer who would

represent him (Rule 30). On 19 September 1996 the President granted

him legal aid (Rule 4 of the Addendum to Rules of Court A).

3. The Chamber to be constituted included ex officio

Mr L.-E. Pettiti, the elected judge of French nationality (Article 43

of the Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 4 (b)). On 8 February 1996, in the presence of

the Registrar, the President drew by lot the names of the other

seven members, namely Mr F. Gölcüklü, Mr F. Matscher, Mr N. Valticos,

Mr R. Pekkanen, Sir John Freeland, Mr B. Repik and Mr E. Levits

(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).

4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the Government,

the applicant's lawyer and the Delegate of the Commission on the

organisation of the proceedings (Rules 37 para. 1 and 38). Pursuant

to the order made in consequence, the Registrar received the

applicant's memorial on 22 July 1996 and the Government's memorial on

30 July. On 6 September 1996 the Secretary to the Commission indicated

that the Delegate did not wish to reply in writing.

On 31 October 1996 the Commission produced the file on the

proceedings before it, as requested by the Registrar on the President's

instructions.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

25 November 1996. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr J.-F. Dobelle, Deputy Director of Legal Affairs,

Ministry of Foreign Affairs, Agent,

Mrs M. Dubrocard, magistrat, on secondment to the

Legal Affairs Department, Ministry of Foreign

Affairs,

Mrs N. Berthélémy-Dupuy, magistrat, on secondment to the

Human Rights Office, European and International

Affairs Department, Ministry of Justice,

Mr F. Fèvre, magistrat, on secondment to the

Department of Criminal Affairs and Pardons,

Ministry of Justice, Advisers;

(b) for the Commission

Mr J.-C. Soyer, Delegate;

(c) for the applicant

Mr G.-M. Ney, of the Saverne Bar, Counsel.

The Court heard addresses by Mr Soyer, Mr Ney and Mr Dobelle.

AS TO THE FACTS

I. Circumstances of the case

6. Between July and November 1988 several armed bank robberies

were committed in eastern France. Five concurrent

judicial investigations were begun, in Colmar on 25 August, Montbéliard

on 23 September, Mulhouse on 28 October and Colmar again on 31 October.

On 13 December 1988 the Mulhouse Regional Crime Squad arrested

the applicant and his brother and took them into police custody. They

immediately admitted the offences of armed robbery, attempted

armed robbery, theft and criminal conspiracy of which they were

accused. On 15 December the Colmar investigating judge charged them

and ordered their detention pending trial. He charged five other

persons with criminal conspiracy, aiding and abetting armed robbery or

attempted armed robbery, handling stolen goods or the proceeds of

armed robbery and unlawful possession of a firearm and ordered that one

of them be detained.

Mr Muller was held in pre-trial detention for the entire

duration of the judicial investigation (see paragraphs 21-28 below).

A. The criminal proceedings

1. The judicial investigation proceedings

(a) Instructions to the police

7. Surveillance by means of shadowing and telephone tapping had

already been ordered before the arrests were made in

judicial investigations begun in proceedings against a person or

persons unknown. Further instructions were issued on 14 February 1989

to the gendarmerie in Antibes, Barr and Saverne, on 15 December 1989

to the gendarmerie in Montbéliard, on 28 September 1990 to the

Strasbourg CID and on 28 November 1990 to the gendarmerie in Saverne,

Strasbourg, Mulhouse and Wintzenheim.

(b) Amalgamation of proceedings and replacement of

investigating judges

8. The proceedings were amalgamated by the joinder on

15 December 1988 of the two investigations begun in Colmar and by the

transfer of the cases for which the Montbéliard and

Mulhouse investigating judges were responsible from them to their

colleague in Colmar on 2 February 1989 and 28 December 1989

respectively. On three occasions thereafter (11 April 1989, 1 February

and 18 April 1990) the judge investigating the case was replaced.

(c) The charges

9. In March 1989 the investigating judge brought three further

charges against suspects already being proceeded against, including the

applicant. On 10 October 1990 he charged a further person with aiding

and abetting robbery and ordered his detention pending trial for

one year, which order was renewed on expiry of the warrant. He

arranged with that person a confrontation of the co-accused, which

Mr Muller refused to attend. As a result, a further confrontation was

arranged for 11 June 1991 between the applicant and four co-accused.

Three other persons were charged on 27 November 1990, 5 February 1991

and 10 July 1991. The charge brought on 5 February had been requested

by the public prosecutor on 30 October 1990.

(d) Questioning and other investigative measures

10. In 1989 the investigating judge questioned Mr Muller on 2 and

13 February, 30 June, 27 October and 8 and 29 November. He examined

his brother, who had also been charged as a principal, on 27 January,

24 and 27 October and 8 and 30 November and some of the co-accused on

5 June and 26 October. The psychiatric, medical and social inquiry

reports on the applicant and his brother that were ordered on

14 February 1989 were filed on 15 March. On 3 March 1989 the

investigating judge had received the documents requested on

13 February 1989 from the judge responsible for the execution of

sentences in Strasbourg. Fearing that the applicant might escape, he

had him transferred on 28 April from Colmar Prison to

Strasbourg Prison. On 11 July he ordered that a co-accused who had

been in custody since 15 December 1988 should be released subject to

court supervision on terms which he subsequently varied.

11. In 1990 he questioned the principals together on 1 March and

2 July and some of the co-accused on 12 March and 18 October.

Psychiatric reports ordered on 28 September 1990 on two of the

main co-accused were filed on 3 November. On 4 January 1991 the judge

received a report requested on 28 November 1990 on a person charged on

27 November 1990. On 14 June 1991 he ordered a psychiatric report on

the accused whose detention pending trial he had ordered on

10 October 1990. He received it on 30 June 1991 at the same time as

information on that accused's personality which he had requested from

the Lure investigating judge on 4 April 1991.

(e) Closure of the judicial investigation

12. On 8 August 1991 the investigating judge sent the investigation

file to the public prosecutor, who on 24 September 1991 applied for

orders for severance, a partial committal to the Criminal Court, a

partial discharge and transfer of the remainder of the case to the

Principal Public Prosecutor.

13. On 7 November 1991 the judge ordered that the case be sent to

the Principal Public Prosecutor in respect of the offences classified

as serious crimes (crimes) - armed robbery, attempted armed robbery,

aiding and abetting armed robbery and handling the proceeds of an armed

robbery - and the connected other major offences (délits) of theft,

conspiracy and unlawful possession of firearms and ammunition. In

particular, he considered that there was sufficient evidence against

the applicant to commit him for trial on four counts of armed robbery,

three counts of attempted armed robbery, one count of conspiracy to

commit one or more serious crimes and various counts of theft of

vehicles. He made a partial discharge order in respect of

three co-accused.

14. On 12 December 1991 the Indictment Division of the

Colmar Court of Appeal committed seven people, including Mr Muller, to

stand trial at the Haut-Rhin Assize Court. It ordered their arrest and

detention in the prison near the Assize Court. With respect to the

length of time that the applicant had spent in pre-trial detention, it

held as follows:

"With regard to the reasonable time laid down in Article 5

para. 3 of the Convention (art. 5-3), failure to comply with

which could be sanctioned only by the release of the accused,

which he has not applied for, Mr Patrick Muller, who has been

in custody since 15 December 1988, stands accused of a number

of armed robberies committed within the jurisdiction of

three different tribunaux de grande instance and is currently

the main subject of a single judicial investigation, which was

made complicated by transfers and joinders and covered

twelve principal accused, co-principals and accomplices, all

members of one and the same criminal conspiracy.

Although the investigations were not perhaps conducted with

quite as much diligence as was desirable, we are satisfied from

the summary of the investigative measures in the investigating

judge's order of 9 August 1991 dismissing the accused's only

application for release, that the length of his detention has

not, to date, exceeded the authorised limit."

Having considered the information on the applicant's

personality, it also noted: "His conduct in detention, like his

brother's, has been deplorable owing to the influence he has exerted

on the other inmates by a policy of systematic protest."

15. In judgments dated 14 April 1992 the Court of Cassation

dismissed as being out of time the appeals on points of law brought by

Mr Muller, his brother and a co-defendant on 17 January 1992 against

the order committing them for trial at the Assize Court.

2. The trial proceedings

16. Owing to the suspensive effect of these appeals to the

Court of Cassation, the case could not be tried by the Assize Court

until the appeals on points of law had been heard.

17. In August and September 1992 the experts, other witnesses and

the civil parties were summoned to appear at the trial set down for

21 September 1992 at the Haut-Rhin Assize Court, whose president

examined the defendants on 7 September 1992.

18. On 18 September 1992 the defence lawyers applied for an

adjournment of the trial on the ground that they had not been able to

communicate with their clients since 12 September because of a

prison warders' strike. On 21 September the Assize Court granted their

applications and the trial was adjourned to the December session.

Fresh summonses to appear were served in November and the trial took

place on 7, 8 and 9 December 1992.

19. On 9 December 1992 the Haut-Rhin Assize Court convicted the

applicant and his brother and sentenced them to ten years' imprisonment

for armed robbery, attempted armed robbery, theft and conspiracy; four

other accused, on whom it passed a two-year suspended sentence; and a

fifth accused, who was given a three-year suspended sentence.

Mr Muller was released on 13 July 1996, the entire period he had spent

in pre-trial detention having been deducted from his sentence.

B. Proceedings relating to pre-trial detention

20. While the applicant was in custody pending trial, a number of

disciplinary penalties were imposed on him: a 25-franc fine in

November 1989 for producing an identity document from which the

photograph had been removed (he had given it to his wife during a

prison visit), a suspended sentence of four days' confinement to his

cell in April 1990 for refusing to allow himself to be searched when

leaving the prison visiting room and two days' solitary confinement in

July 1990 for "jeopardising public order or prison discipline".

On 24 October 1989 the governor of Strasbourg Prison had

reported to the investigating judge on the behaviour of the applicant

and his brother in prison.

1. The first extension of pre-trial detention

(12 December 1989)

21. After holding an adversarial hearing on the issue of detention

in the presence of the accused as required by law, the

Colmar investigating judge made an order on 12 December 1989 detaining

Mr Muller for a further period of one year from 15 December 1989 on the

following grounds:

"The offences with which the accused is charged - three armed

robberies and one attempt to commit armed robbery, carried out

within a period of three months - are particularly serious.

He did not hesitate to use his weapon and tied up a bank

manager while threatening him with it. In addition, he has

six previous convictions. He must therefore remain in custody

while the investigation continues in order to avoid his

reoffending or attempting to escape punishment."

2. The second extension of pre-trial detention

(4 December 1990)

22. On 4 December 1990 the investigating judge ordered an extension

of pre-trial detention for a further period of one year from

15 December 1990 on the following grounds:

"The accused admits that he has committed several robberies;

he has previous convictions for similar offences; and

investigations are continuing in order to establish the role

of each of the co-accused. In view of the sentence he faces,

the accused, Patrick Muller, is unlikely to appear for trial."

3. The first application for release

(6 August 1991)

23. On 6 August 1991 the applicant made an application for his

immediate release on the following grounds:

"(a) at no stage of the investigation has my behaviour

obstructed the ordinary course of justice;

(b) I admitted the offences even before I appeared before the

judge responsible for investigating my case;

(c) the investigation of this case by successive judges is

being protracted entirely because they persist in trying to

establish the guilt of persons unconnected with the offences

with which I am charged;

(d) I have been in custody for thirty-three months;

(e) had I been tried within a 'reasonable' time, I would have

received the following reductions of sentence:

(i) nine months for the bicentenary of the

1789 Revolution;

(ii) nine months granted by the President on the occasion

of Bastille Day;

(iii) three times three months' ordinary remission;

(f) had I been granted these reductions, I would have served

a term of five years;

(g) it is by no means certain that the sentence which the

Haut-Rhin Assize Court will pass will exceed the period I have

already spent in pre-trial detention."

The prosecution opposed his release for the following reasons:

"The accused is implicated in several armed robberies and he

has previous convictions for similar offences, so is an

habitual offender. He is unlikely to appear for trial in view

of the sentence he faces."

24. In an order of 9 August 1991 the Colmar investigating judge

refused the application in the following terms:

"In order to determine whether [the length of the pre-trial

detention ordered on 15 December 1988 exceeded the 'reasonable

time' referred to in Article 5 para. 3 (art. 5-3)], regard must

be had to the complexity of the proceedings and to the

accused's conduct during the investigation.

It must be observed that Patrick Muller is charged with

six armed robberies and attempted armed robberies committed

with his brother ... Although both accused have admitted the

offences, they have consistently sought to exculpate their

accomplices and their associates charged with

criminal conspiracy. That has meant that numerous

investigations, interviews and confrontations have been

necessary in order to establish the precise role of each of the

twelve accused in the proceedings, which have been particularly

complex owing to the number of offences with which the accused

were charged.

Furthermore, Patrick Muller refused to be taken from prison to

attend the confrontation on 29 October 1990, which consequently

had to be reorganised for 11 June 1991 with the accused

present. In addition, it was necessary to issue a warrant on

30 October 1990 for the arrest of L., who was not arrested

until 5 February 1991. Moreover, it is to be noted that

Patrick Muller has at no stage applied for release. Lastly,

the chronology of the main investigative measures [which he set

out] indicates that there were no interruptions in the

investigation.

...

Patrick Muller's application for release must be refused.

Mr Muller must be kept in custody, firstly, in order to ensure

that he appears for trial as, in view of the sentence he faces,

there is a risk of his absconding and, secondly, to prevent him

reoffending, since he has previous convictions for similar

offences."

25. On 29 August 1991 the Indictment Division of the

Colmar Court of Appeal upheld the refusal to release the applicant, as

follows:

"The defendant admitted, on his first appearances before the

investigating judges in charge of the cases concerning him,

that he had taken part in three armed robberies and

two attempted armed robberies committed between 1 July and

28 October 1988 in different banks in the Colmar area.

He also admitted stealing a number of cars used in the hold-ups

and being in possession of weapons used during them.

In the proceedings concerned he is one of twelve accused whose

actions have given rise to an investigation.

The various steps taken during the investigation are summarised

in the order appealed against, to which reference is made on

this point.

It is to be noted not only that the proceedings were

complicated by joinders and transfers of jurisdiction but also

that, in order to clarify the exact role and the degree of

involvement of the various co-accused in the offences with

which Patrick Muller is charged, it was indisputably necessary

to keep him in custody, given the risk of his putting pressure

on those persons or influencing what they said in their

statements.

The last confrontation took place in the investigating judge's

office on 11 June 1991 and it was necessary beforehand to

determine - a complex process - the exact role played by the

various accused.

The investigating judge sent the case to the public prosecutor

on 8 August 1991 with a view to making a disposal order.

Patrick Muller, whose detention was justified until the role

of all the accused involved in the hold-ups and the surrounding

events had been established, is consequently precluded from

claiming that the length of his pre-trial detention is

unreasonable and from using that as a ground for applying for

release.

Given the need to ensure that Patrick Muller, who in view of

the sentence he faces is likely to abscond, appears for trial,

and given the risk of his reoffending (which is all the greater

as he has previous convictions for similar offences), the

investigating judge was right in the circumstances to dismiss

the application."

26. On 18 December 1991 the Criminal Division of the

Court of Cassation dismissed the applicant's appeal on points of law

against that decision. It gave the following reasons in its judgment:

"It is noted in the judgment appealed against that

Patrick Muller was involved in a series of three armed

robberies and two attempted armed robberies committed between

1 July and 28 October 1988 in various banks in the Colmar area.

Twelve other persons have also been charged in connection with

the same matters.

Muller appeared before the court below and was assisted by his

counsel. With respect to his submission, repeated in the

ground of appeal, that there had been a violation of Article 5

para. 3 (art. 5-3) of the European Convention, the court found

that the proceedings had been complicated by joinders and

transfers of jurisdiction and by the need to clarify the exact

role and the degree of involvement of various co-accused in the

offences with which Patrick Muller was charged. It added that

the last confrontation had taken place on 11 June 1991 and that

the investigating judge had sent the case to the public

prosecutor on 8 August 1991 with a view to making a disposal

order; for those reasons, it held that the accused, Muller, was

precluded from claiming that the length of his detention had

been unreasonable.

In those circumstances the Indictment Division justified its

decision in law in respect of the provisions referred to in the

ground of appeal, which, calling into question as it does the

unfettered discretion of the courts of trial and appeal in

assessing the length of detention, cannot be allowed."

4. The second application for release

(18 September 1992)

27. On 18 September 1992 the applicant made his last application

to the Assize Court for release and at the same time applied for the

trial to be adjourned (see paragraph 18 above). He submitted that

there was every reason for him to appear for trial as he had a family

and could stay with his mother, and he complained of a failure to

comply with the "reasonable time" requirement of Articles 5 and 6 of

the Convention (art. 5, art. 6).

28. The Assize Court refused his application on 21 September 1992.

On 23 March 1993 the Court of Cassation dismissed the applicant's

appeal on points of law against that decision in these terms:

"It appears from the procedural documents that by a decision

of the Indictment Division of the Colmar Court of Appeal of

12 December 1991 which has become final, Patrick Muller was

committed to stand trial at the Haut-Rhin Assize Court on the

indictment [see paragraph 14 above]. The case was set down for

hearing on 21 September 1992. On that date the accused's

counsel sought an adjournment as he had been unable to

communicate with his client and also applied for the accused's

release.

In order to answer the submission that there had been a

violation of Article 5 para. 3 of the Convention (art. 5-3) on

the ground that pre-trial detention had exceeded a reasonable

time, the court below stated: 'In the instant case, in view of

its complexity and the number of offences with which the

accused is charged, this "reasonable time" has not been

exceeded'.

The Court of Cassation has no jurisdiction to review that

assessment of fact."

II. Relevant domestic law

29. The relevant provisions of the Code of Criminal Procedure on

pre-trial detention are the following:

Article 144

"In cases involving serious crimes [matière criminelle] and

other major offences [matière correctionnelle], where the

possible sentence is equal to or exceeds one year's

imprisonment in the case of an offence discovered during or

immediately after its commission [délit flagrant], or

two years' imprisonment in other cases, and if the constraints

of court supervision are inadequate in regard to the functions

set out in Article 137, detention pending trial may be ordered

or continued:

(1) where detention of the accused pending trial is the

sole means of preserving evidence or material clues or of

preventing either pressure being brought to bear on

witnesses or victims, or collusion between accused and

accomplices;

(2) where such detention is necessary to preserve public

order from the disturbance caused by the offence or to

protect the accused, to put an end to the offence or to

prevent its repetition or to ensure that the accused

remains at the disposal of the judicial authorities.

Detention pending trial may also be ordered, in the

circumstances set out in Article 141-2, where the accused

deliberately fails to comply with the obligations imposed by

court supervision."

Article 145

"In cases involving major offences [matière correctionnelle]

an order for detention of the accused pending trial may be made

at any stage of the investigation and must set out the legal

and factual reasons for the decision with reference to the

provisions of Article 144; the accused shall be informed orally

of the order and be given a full copy of it, receipt being

acknowledged by signature in the case file.

The provisions of the preceding paragraph shall [also] apply

to cases involving serious crimes [matière criminelle].

Whatever the classification of the offence, an

investigating judge who is considering detaining an accused

pending trial shall inform him that he has a right to the

assistance of counsel of his own choosing or assigned

officially. He shall also inform him of his right to have

adequate time for the preparation of his defence.

The chosen member of the Bar or, where an application has been

made for counsel to be assigned officially, the chairman of the

Bar shall be promptly informed of the detention by any

available means; mention of this formality shall be made in the

record of the judicial investigation. The lawyer shall be

entitled to inspect the case file immediately and to

communicate freely with the accused.

The investigating judge shall give his decision in chambers,

after an adversarial hearing at which he shall hear the

submissions of the public prosecutor, then the observations of

the accused and, if appropriate, of his counsel.

However, the investigating judge may not order the immediate

detention of the accused if he or his lawyer requests time for

the preparation of his defence.

In that case the investigating judge may, in an order that is

reasoned with reference to the provisions of the preceding

paragraph and against which no appeal shall lie, direct that

the accused be taken into custody for a fixed period, which may

in no case exceed five days. Within that period he shall again

have the accused brought before him and (whether or not the

accused is assisted by counsel) shall proceed as prescribed in

the fourth and fifth paragraphs. If he does not order

detention of the accused pending trial, the accused shall be

released.

Any period spent in temporary custody shall, where appropriate,

count as part of the period of detention pending trial for the

purposes of Article 145-1. Temporary custody shall be treated

as detention pending trial within the meaning of Article 149

of this Code and Article 24 of the Criminal Code."

Article 145-2

"In cases involving serious crimes [matière criminelle] an

accused cannot be held in detention for more than one year.

However, the investigating judge may, at the end of that

period, decide to prolong detention for a period not exceeding

one year in an order made in accordance with the provisions of

the fifth paragraph of Article 145 and renewable in the same

way. The order must set out, with reference to the provisions

of sub-paragraphs (1) and (2) of Article 144, the legal and

factual reasons for the decision.

The provisions of this Article shall apply until the

disposal order is made."

Article 147

"Whatever the classification of the offence, the accused may

be released, subject or not to court supervision, by means of

an order made by the investigating judge of his own motion

after the public prosecutor has submitted his observations,

provided that the accused undertakes to attend for procedural

purposes whenever required to do so during the investigation

and to keep the investigating judge informed of all his

movements.

The public prosecutor may also apply at any time for the

accused to be released. The investigating judge shall rule

within five days of such an application."

Article 148

"Whatever the classification of the offence, the accused or his

lawyer may at any time lodge with the investigating judge an

application for release, subject to his giving the undertakings

referred to in the preceding Article. The investigating judge

shall communicate the file immediately to the public prosecutor

for his submissions. He shall at the same time, by whatever

means, inform any civil party, who may submit observations.

The registrar shall record in the investigation file when and

by what means the information prescribed in this paragraph was

given.

The investigating judge shall take a decision, in an order

giving specific grounds as laid down in the first and

second paragraphs of Article 145, not later than five days

following communication of the file to the public prosecutor.

However, where a decision has still to be taken on a previous

application for release or on an appeal against an earlier

order refusing release, the five-day period will only start to

run on the date of the decision of the investigating judge or

Indictment Division.

Where release is granted, it may be made subject to court

supervision.

Where there is a civil party to the proceedings, the

investigating judge's order can only be made forty-eight hours

after notice has been given to that party.

If the investigating judge fails to give a decision within the

period laid down in the third paragraph, the accused may apply

directly to the Indictment Division, which after receiving the

Principal Public Prosecutor's reasoned submissions in writing,

shall decide within twenty days of the application to it,

failing which the accused shall be released unless an order has

been made for particulars of his application to be verified.

The public prosecutor is likewise entitled to apply to the

Indictment Division in the same eventuality."

Article 148-2

"Any judicial authority which has to rule, pursuant to

Articles 141-1 and 148-1, on an application for a

judicial supervision order to be discharged in whole or in part

or for release shall give its decision after hearing the

prosecution and the accused or his counsel; an accused who is

not in detention and his counsel shall be given notice by

registered letter at least forty-eight hours before the date

of the hearing.

The judicial authority to which the application has been made,

depending on whether it is an authority of first or

second instance, shall give its decision within ten or

twenty days of receipt of the application. However, where on

the date of receipt of the application a decision has still to

be taken on a previous application for release or on an appeal

against an earlier decision to refuse release, the ten- or

twenty-day period shall only start to run on the date of the

decision of the relevant judicial authority; if no decision has

been given by the end of that period, the judicial supervision

or detention pending trial shall be terminated and the accused,

unless detained for another reason, shall be released.

The investigating judge's decision shall be enforceable

immediately notwithstanding any appeal; where the accused

remains in detention, the Indictment Division shall give its

decision within twenty days of the appeal, failing which the

accused, unless detained for another reason, shall be

released."

Article 148-4

"When four months have elapsed since his last appearance before

the investigating judge or a judge delegated by the

investigating judge, an accused who is in custody or his

counsel may, provided no disposal order has been made, apply

for release directly to the Indictment Division, which shall

decide as laid down in the last paragraph of Article 148."

PROCEEDINGS BEFORE THE COMMISSION

30. Mr Muller applied to the Commission on 8 March 1993. He

complained of the length of his detention pending trial (Article 5

para. 3) (art. 5-3) and the criminal proceedings which had been brought

against him (Article 6 para. 1) (art. 6-1) and of an infringement of

his right to a fair trial.

31. On 22 February 1995 the Commission (Second Chamber) declared

the application (no. 21802/93) admissible solely with respect to the

complaint relating to the length of the detention pending trial and

declared the remainder inadmissible. In its report of 6 September 1995

(Article 31) (art. 31) it expressed the unanimous opinion that there

had been a violation of Article 5 para. 3 of the Convention (art. 5-3).

The full text of the Commission's opinion is reproduced as an annex to

this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1997-II), but a copy of the Commission's report is obtainable

from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

32. In their memorial the Government asked the Court to "dismiss

Mr Muller's application, alleging a violation of Article 5 para. 3 of

the Convention (art. 5-3), as being manifestly ill-founded".

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 PARA. 3 OF THE CONVENTION

(art. 5-3)

33. Mr Muller submitted that the length of his detention pending

trial had infringed Article 5 para. 3 of the Convention (art. 5-3),

which provides:

"Everyone arrested or detained in accordance with the

provisions of paragraph 1 (c) of this Article (art. 5-1-c) ...

shall be entitled to trial within a reasonable time or to

release pending trial. Release may be conditioned by

guarantees to appear for trial."

The Government disputed that contention whereas the Commission

accepted it.

A. Period to be taken into consideration

34. The period to be taken into consideration started on

13 December 1988, when the applicant was taken into police custody, and

ended on 9 December 1992, when the Assize Court delivered its judgment

(see paragraph 19 above). It therefore lasted almost four years.

B. Reasonableness of the length of the detention

35. In order to assess whether continued detention is justified,

it falls in the first place to the national judicial authorities to

examine all the circumstances arguing for or against the existence of

such a requirement and to set them out in their decisions on the

applications for release. It is essentially on the basis of the

reasons given in these decisions and of the undisputed facts stated by

the applicant in his appeals that the Court is called upon to decide

whether or not there has been a violation of Article 5 para. 3

(art. 5-3).

The persistence of reasonable suspicion that the person

arrested has committed an offence is a condition sine qua non for the

lawfulness of the continued detention, but after a certain lapse of

time it no longer suffices: the Court must then establish whether the

other grounds given by the judicial authorities continued to justify

the deprivation of liberty. Where such grounds were "relevant" and

"sufficient", the Court must also ascertain whether the competent

national authorities displayed "special diligence" in the conduct of

the proceedings (see, as the most recent authority, the Van der Tang

v. Spain judgment of 13 July 1995, Series A no. 321, pp. 17-18,

para. 55).

1. Justification for the detention

36. The relevant authorities considered whether detention should

continue on four occasions - twice of their own motion, on

12 December 1989 and 4 December 1990, and twice on an application by

the applicant, on 6 August 1991 and 18 September 1992

(see paragraphs 21-28 above). As justification for deciding to

continue detention pending trial, they relied on both the seriousness

of the offences and the risk that the applicant would abscond or

reoffend. To justify refusing Mr Muller's applications for release,

they relied simultaneously on the complexity of the case, the needs of

the investigation and the risk that the applicant would collude with

his co-accused, abscond or reoffend.

(a) The complexity of the case

37. In the Government's submission, the case had been complex owing

to the seriousness of the offences and the number of people involved.

It had appeared necessary to detain Mr Muller until trial as he had

sought to clear his accomplices throughout the investigation, and the

last arrests had taken place on 5 February and 10 July 1991, that is

to say two years after the judicial investigation had begun.

38. The Court accepts that the investigation of the case was

complex in that it had been necessary to amalgamate the proceedings,

which had originally been conducted in three different jurisdictions

simultaneously (see paragraphs 6 and 8 above). It notes, however,that

as soon as he was arrested, Mr Muller had admitted the offences of

which he was accused.

(b) The risk of collusion

39. In the Commission's opinion, the applicant's confessions when

questioned and the fact that many other people had been charged in the

first few days of the investigation had reduced the risk of collusion

between the applicant and his co-accused.

40. The Court notes that the judge closed the

criminal investigation on 7 November 1991 and that on 12 December the

Indictment Division committed Mr Muller and his accomplices to stand

trial at the Haut-Rhin Assize Court (see paragraphs 13-14 above). The

risk of collusion between the persons involved must therefore have

disappeared by then (see, among other authorities, the Kemmache

v. France judgment of 27 November 1991, Series A no. 218, p. 26,

para. 54).

(c) Risk of the applicant's absconding and reoffending

41. The Government submitted that there had been no guarantee that

Mr Muller would appear for trial and that his release would have

entailed a risk of his absconding and reoffending.

42. In the Commission's opinion, the risk that he would abscond had

not been adequately established and the danger of his reoffending was

not, by itself, sufficient.

43. Like the Commission, the Court notes that it is not apparent

from the decisions not to release the applicant that there was a real

risk of his absconding. Although such a danger may exist where the

sentence faced is a long term of imprisonment, the Court points out

that the risk of absconding cannot be gauged solely on the basis of the

severity of the sentence faced (see, among other authorities, the

Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, p. 37,

para. 98, and the W. v. Switzerland judgment of 26 January 1993,

Series A no. 254-A, p. 16, para. 33).

44. As far as the danger of reoffending is concerned, a reference

to a person's antecedents cannot suffice to justify refusing release

(see, in particular, the Clooth v. Belgium judgment of

12 December 1991, Series A no. 225, p. 15, para. 40).

(d) Summary

45. In sum, by 7 November 1991 at the latest - when the order

closing the investigation with a view to a committal to the

Assize Court was made (see paragraph 13 above) - the detention in issue

had ceased to be based on relevant and sufficient reasons. It is

therefore necessary to consider the conduct of the proceedings.

2. Conduct of the proceedings

46. Mr Muller submitted that he should not have had to suffer the

consequences of the judicial authorities' decision to prosecute in a

single set of proceedings all the persons implicated in the crimes he

was alleged to have committed, especially as he had immediately

admitted the offences of which he had been accused - even before being

brought before the investigating judge - and had made only two

applications for release, which could not have impeded the smooth

progress of the proceedings.

47. The Government noted that instructions were still having to be

issued to the police at the end of 1990 and considered that the

replacement of successive judges had not hindered the normal progress

of the proceedings. The applicant had himself delayed the

investigation by refusing to attend a confrontation on 29 October 1990

and subsequently applying for the trial to be adjourned.

48. The Court observes that it was not until 18 September 1992 that

the trial was adjourned on account of the prison warders' strike and

that only a few weeks' delay had resulted (see paragraph 18 above).

Furthermore, it notes that the proceedings in issue included the

removal of two investigating judges from the case and the subsequent

replacement of the investigating judge on three occasions

(see paragraph 8 above). Whilst the joinder of the various sets of

proceedings was certainly necessary for the proper administration of

justice, the successive changes of judge - the first a year after the

investigation had begun, the other two after it had been under way for

two years - contributed to slowing down the investigation; that fact

was moreover recognised by the domestic courts (see paragraph 25

above). The judicial authorities did not act with all due expedition,

although the applicant had admitted the offences once and for all as

soon as the investigation had begun (see paragraph 6 above) and did not

thereafter make any application that might have slowed its progress.

The period spent by Mr Muller in detention pending trial therefore

exceeded the "reasonable time" laid down in Article 5 para. 3

(art. 5-3).

49. In conclusion, there has been a violation of Article 5

para. 3 (art. 5-3).

II. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)

50. Article 50 of the Convention (art. 50) provides:

"If the Court finds that a decision or a measure taken by a

legal authority or any other authority of a High Contracting

Party is completely or partially in conflict with the

obligations arising from the ... Convention, and if the

internal law of the said Party allows only partial reparation

to be made for the consequences of this decision or measure,

the decision of the Court shall, if necessary, afford just

satisfaction to the injured party."

A. Damage

51. Mr Muller claimed compensation of 100,000 French francs (FRF)

for non-pecuniary and pecuniary damage. Because of his detention

pending trial he had been unable to benefit from any clemency measure

or to work or to attend any vocational training courses.

52. In the Government's submission, the applicant had not provided

any prima facie evidence of pecuniary damage and a finding of a

violation would provide sufficient compensation for any non-pecuniary

damage.

53. The Delegate of the Commission expressed no opinion.

54. The Court dismisses the claim relating to pecuniary damage as

it notes that in any event the length of the detention pending trial

was deducted from his sentence. With regard to non-pecuniary damage,

it considers that the present judgment constitutes sufficient

compensation.

B. Costs and expenses

55. Mr Muller sought reimbursement of his costs and expenses,

namely FRF 60,300, incurred in the proceedings before the French courts

and the Convention institutions.

56. The Government argued that no vouchers had been produced in

support of the claim.

57. The Delegate of the Commission expressed no view.

58. On the basis of the information in its possession and its

case-law, the Court awards the applicant FRF 40,000 for costs and

expenses, principally those incurred in Strasbourg.

C. Default interest

59. According to the information available to the Court, the

statutory rate of interest applicable in France at the date of adoption

of the present judgment is 3.87% per annum.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 5 para. 3 of

the Convention (art. 5-3);

2. Holds that the present judgment in itself constitutes

sufficient just satisfaction in respect of the non-pecuniary

damage sustained by the applicant;

3. Holds that the respondent State is to pay the applicant, within

three months, 40,000 (forty thousand) French francs for costs

and expenses, on which sum simple interest at an annual rate

of 3.87% shall be payable from the expiry of the

above-mentioned three months until settlement;

4. Dismisses the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 17 March 1997.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

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CASE OF MULLER v. FRANCE

CASE OF MULLER v. FRANCE

LEXI