Resolution CM/ResDH(2009)126 [1]

Execution of the judgment of the European Court of Human Rights

Selmouni against France

(Application No. 25803/94, judgment of 28 July 1999, final on 28 July 1999)

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

Recalling that the violations of the Convention found by the Court concern acts of physical and mental violence perpetrated upon a Moroccan/Netherlands national while in police custody at Bobigny between 5 and 9 November 1991 in proceedings related to drug-trafficking, the Court having considered these acts, taken as a whole, to amount to torture within the meaning of Article 3 of the Convention (violation of Article 3); and also the excessive length of the subsequent criminal proceedings, to which the applicant was a civil party, against the police officers involved (violation of Article 6, paragraph 1);

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

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 taken note of the declarations of the Court regarding the possibility that the sums awarded in just satisfaction might be attached;

Having satisfied itself that the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix) and that the sum was not attached;

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its 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

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) and considering the decision taken at the 775th meeting of the Ministers ' Deputies (17 December 2001), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2009)126

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

Selmouni against France

Introductory case summary

The case concerns acts of physical and mental violence perpetrated upon a Moroccan/Netherlands national while in police custody at Bobigny between 5 and 9 November 1991 in proceedings related to drug-trafficking, the Court having considered these acts, taken as a whole, to amount to torture within the meaning of Article 3 of the Convention (violation of Article 3). It also concerns the excessive length of the subsequent criminal proceedings, to which the applicant was a civil party, against the police officers involved (violation of Article 6, paragraph 1).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary and non-pecuniary damage

Costs and expenses

Total

500 000 FRF

113 364 FRF

613 364 FRF

Paid on 16 November 1999 and le 7 December 1999, interest paid on 23 December 1999

b) Individual measures

It transpires from the Court ' s judgment that the judicial proceedings against the policemen suspected of the offences at issue resulted in a judgment of the Versailles Court of Appeal of 1 July 1999 which held the policemen guilty of “assault and wounding with or under the threat of the use of a weapon, occasioning total unfitness for work for less than eight days ( ... ) by police officers in the course of their duty and without legitimate reason” and sentenced them to imprisonment, some of which was suspended. When the European Court gave its judgment, it was still possible to appeal before the Cour de cassation . Before the Committee of Ministers the importance of bringing the criminal proceedings against the policemen to a close quickly was emphasised. The government subsequently made it known that that their appeal on points of law had been dismissed on 31 May 2000.

The Court held that having regard to the extreme seriousness of the violations of the Convention of which Mr Selmouni was victim, it considered that he suffered personal injury and non-pecuniary damage for which the findings of violations in this judgment did not afford sufficient satisfaction. Making its assessment on an equitable basis, it awarded the applicant the sums set out above.

The applicant had asked the Court to specify in its judgment that the sums awarded under Article 41 should be exempt from attachment. In reply, the Court stated that it considered that:

“The compensation fixed pursuant to Article 41 and due by virtue of a judgment of the Court should be exempt from attachment. It would be incongruous to award the applicant an amount in compensation for, inter alia, ill-treatment constituting a violation of Article 3 of the Convention and costs and expenses incurred in securing that finding if the state itself were then to be both the debtor and creditor in respect of that amount. Although the sums at stake were different in kind, the Court considers that the purpose of compensation for non-pecuniary damage would inevitably be frustrated and the Article 41 system perverted if such a situation were to be deemed satisfactory. However, the Court does not have jurisdiction to accede to such a request [ ... ]. It must therefore leave this point to the discretion of the French authorities.”

The French authorities assured the Committee of Ministers that the sums would not be attached.

Finally the applicant requested before the Court to be transferred to the Netherlands to serve the remainder of his sentence there. The Court reiterated that Article 41 does not give it jurisdiction to make such an order against a contracting state. Before the Committee of Ministers, the applicant did not reiterate this request.

II. General measures

The European Court ' s judgment was rapidly published and commented upon, in particular in les cahiers du CREDHO n o 6.

After the judgment of the European Court , Law 2000-494 of 6 June 2000 created the National Commission for Policing Ethics ( Commission Nationale de Déontologie de la Sécurité , www.cnds.fr ), mandated to supervise the respect of ethics by all those working in security in the French Republic . The Commission is an independent administrative authority and began work in 2001.

In its report for 2001, the Commission underlined the growing importance of the European court ' s case-law, referring to the finding against France in the Selmouni case. Since then, it has investigated a number of complaints concerning detention on remand and the conditions thereof. In several opinions and recommendations, the Commission asked the Interior Ministry to take action to ensure that state officials ordering and administering detention on remand strictly respect the legal and ethical rules. On 11 March 2003 the Minister of the Interior, of Internal Security and of Local Freedoms issued a circular: Guaranteeing the dignity of remand prisoners. This text reminded police staff of several basic rules necessary to maintain the integrity and dignity of remand detainees.

Furthermore, the French government recalled that for some years it had been engaged in dialogue with the European Committee for the prevention of torture and inhuman or degrading treatment or punishment (CPT) on the implementation of the this circular, which had been welcomed by the CPT (cf. CPT/Inf(2004)6, p30).

III. Conclusions of the respondent state

The government considers that the 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 3 December 2009 at the 1072nd meeting of the Ministers’ Deputies