Resolution CM/ ResDH (2011)209 [1]

Execution of the judgment of the European Court of Human Rights

Brusco against France

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”) [2] ,

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Case name (App. No.)

Judgment of

Final on

Brusco (1466/07)

14/10/2010

14/01/2011

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of individual measures to put an end to the violations and as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute the judgment;

Having, in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see appendix);

Having noted that the respondent state paid the a p plicant the just satisfaction, as provided in the judgment;

DECLARES, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination thereof.

Appendix to Resolution CM/ ResDH (2011)209

Information about the measures to comply with the judgment in the case of

Brusco against France

Brusco against France (Application No. 1466/07)

Judgment of 14 October 2010, final on 14 January 2011

Action report by the French government

The case concerns the right to remain silent and not assist in one ’ s own incrimination.

The applicant, suspected of involvement in an assault on a man by two hooded individuals in the underground car park of a Parisian residential block, was placed in custody in the context of a request for evidence on commission. In accordance with Article 153 of the Code of Criminal Procedure applicable to the facts of the case, while being examined as a witness, he was asked to swear an oath. At the end of his custody, ordered in accordance with the provisions of Article 154 of the Code, he was placed under investigation on the charge of abetting an attempted murder. By a decision which became final in 2006, he was sentenced to five years of imprisonment, with one year suspended, for having “abetted the offence of deliberate violence causing more than eight days ’ total incapacity for work, which L.E. and F.G. committed in collusion, with premeditation and with the use of a weapon, by giving the culprits instructions to commit the offence, in this instance by asking them to beat up and put pressure on a man whose identifying features he supplied”.

The European Court found that when placed in custody and obliged to swear an oath to tell the truth, the applicant was on a criminal charge and therefore enjoyed the right not to assist in his own incrimination and to remain silent. It concluded that paragraphs 1 and 3 of Article 6 of the Convention had been infringed.

I. Individual measures

1. Payment of just satisfaction

The Court awarded the applicant just satisfaction of 12 000 € in compensation for his non ‑ pecuniary damage and in respect of costs and expenses. The principal amount was paid to the applicant on 2 December 2010.

2. Any other measures

In its judgment, the Court dismissed the claims submitted by the applicant, who requested the reimbursement of wages not received through being detained and under court supervision. In fact it considered that the sole acceptable basis for the award of just satisfaction lay in the violation of Article 6, paragraphs 1 and 3 of the Convention and held that there was no link between the violation found and the alleged pecuniary damage. The government recalls moreover that Articles 626-1 et seq. of the Code of Criminal Procedure allow review of a criminal judgment to be requested after the delivery of a European Court of Human Rights judgment. The government is of the opinion that no other individual measure is required in this case.

II General measures

1. Dissemination

It should be noted that the French authorities make a practice of publishing the judgments of the European Court and circulate them to the authorities concerned. This judgment was accordingly published in the Observatoire du droit européen of the Court of Cassation (October 2010, No. 34).

2. Other general measures

The Court found a violation of Article 6, paragraphs 1 and 3 of the Convention regarding the applicant ’ s right not to assist in his own incrimination and to remain silent (paragraph 3 of the operative part of the judgment).

As it observed (paragraphs 29 and 53), the various laws amending French criminal procedure have brought about radical change in the conditions under which a witness may be examined. Today, the status of witness examined under oath, and that of person in police custody, who never testifies under oath in the case concerning him or her, are clearly distinct and even incompatible (Articles 153 and 154 of the Code of Criminal Procedure).

It may be further mentioned that the law of 14 April 2011 firstly provides that a person placed in custody shall be informed forthwith that he or she enjoys the right to make statements, to answer the questions asked or to remain silent and, secondly, has radically altered the conditions of intervention by the lawyer during custody (Articles 63 et seq. Code of Criminal Procedure), the lawyer being able to attend the hearings and cross ‑ examinations of the person in custody. It is recalled in addition that, since the law of 15 June 2000, the person may, as soon as custody commences, ask to confer with a lawyer.

Consequently, the general measures needed to prevent a similar violation of the Convention from occurring have been taken, and the execution of this judgment calls for no other general measure.

The Government considers that this judgment has been executed.

[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies

[2] See also the Recommendations adopted by the Committee of Ministers in the context of the supervision of judgments of the European Court of Human Rights and in particular Recommendation Rec (2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies.