Resolution CM/ ResDH (2011)103 [1]

Execution of the judgments of the European Court of Human Rights

Zervudacki and X against France

(Application No. 73947/01 , judgment of 27 July 2006, final on 27 October 2006

Application No. 20335/04 , judgment of 2 November 2008, final on 20 February 2009)

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”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern breaches of the applicants ’ right to liberty and security due to the unlawful detention of the applicants as from the expiry of police custody until their presentation before a judge (violations of Article 5, paragraph 1); the Zervudacki case also concerns the fact that the applicant could not file a petition before a court to obtain a speedy ruling on the lawfulness of her detention (violation of Article 5, paragraph 4) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the a p plicants the just satisfaction provided in the judgments under conditions accepted by the applicants (see details in Appendix),

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 erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state, and considering the decision taken at the 997th meeting of the Ministers ’ Deputies (5 June 2007) for the Zervudacki case and at the 1059th meeting (June 2009) for the X case, 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 of these cases.

Appendix to Resolution CM/ ResDH (2011)103

Information on the measures taken to comply with the judgments in the cases of

Zervudacki and X against France

Introductory case summary

These cases concern breaches of the applicants ’ right to liberty and security due to their unlawful detention as from the expiry of police custody until their presentation before a judge (violations of Article 5, paragraph 1). In the Zervudacki case, the Court pointed out that the responsible authorities should have taken all necessary precautions to ensure that the legal time-limit for the applicant ’ s police detention was respected. The 48-hour maximum duration of privation of liberty in the context of police detention was laid down by law and thus known to the authorities, and was absolute. The Court also pointed out that an acceptable balance must be found between the opposing interests at stake and that in the present case the applicant had been detained in conditions which did not take into account this balance. The Zervudacki case also concerns the fact that the applicant could not file a petition before a court on the lawfulness of her detention (violation of Article 5, paragraph 4).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Zervudacki ( 73947/01)

-

4 000 EUR

-

4 000 EUR

Paid on 14/08/2007 - 170,33 EUR paid as default interest on 04/12/2007

X

( 20335/04)

-

2 000 EUR

3 000 EUR

5 000 EUR

Paid on 24/06/2009 - 15,62 EUR paid as default interest on 24/06/2009

b) Individual measures

The detention at issue is ended and the Court awarded the applicants just satisfaction in respect of the non pecuniary-damage suffered.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

Subsequent to the events in these cases, the gap in the law caused by the absence of texts relating to the period of “ mise à disposition ” was filled by Law 2004-204 of 9/03/2004 “adapting the judicial system to the evolutions of criminality” determining, among other things, time-limits and procedures for detention between the end of the police custody and the actual presentation before the investigating judge.

Also, the Minister of Justice has issued an instruction to principal state prosecutors and presidents of courts of appeal on the consequences to be drawn from the European Court ’ s judgment in the Zervudacki case (CRIM-AP N o 06/2010 – D2, of 01/12/2006) .

The instruction specifies that it follows from the Court ’ s judgment that the right to eat, to rest and to wash should be effectively guaranteed to all persons brought before judicial authorities, when the length of the " mise à disposition " is substantial and therefore that they should establish "best practices" in this respect.

Relating to the possibility for persons deprived of their liberty to seek a rapid ruling on the lawfulness of their detention during this period, the instruction recalls the need to limit as strictly as possible the length of the " mises à disposition ", specifying that only the fact of being effectively brought before the investigating judge or the criminal court is likely to meet the requirements of Article 5§4 of the Convention.

Furthermore, the French authorities underline the fact that ordinary courts exercise effective control of the time-limit fixed by the law of 9 March 2004 in relation to the presentation before a judge of a person whose police detention has ended, and that failure to comply with the time-limit leads to the annulment of the proceedings and the freeing of the person concerned. Attention is particularly drawn, in this respect, to the constant jurisprudence of the criminal chamber of the Court of Cassation (Cass. crim. 16/09/2003, Cass. Crim. 26/10/2004, Cass. Crim. 6/12/2005, Cass. Crim. 16/02/201, Cass. Crim. 23/06/2011).

III. Conclusions of the respondent state

The government considers that no individual measure is required in these cases apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 14 September 2011 at the 1120th Meeting of the Ministers’ Deputies