Final Resolution ResDH (2002)60 Human Rights Application No. 23050/93 Iscache against France

(Adopted by the Committee of Ministers on 24 June 2002 at the 798th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to Interim Resolution DH (98) 382, adopted on 12 November 1998 in the case of Iscache against France, in which the Committee of Ministers decided to make public the report of the European Commission of Human Rights and that there had been a violation of Article 5, paragraphs 4 and 5, and of Article 8 of the Convention, on account of the absence of a prompt judgment regarding the lawfulness of his detention on remand, the absence of a right to compensation in this respect and a breach of his right to respect for his private life and correspondence;

Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicant, proposals supplemented by a letter of the President of the Commission dated 26 May 1999;

Whereas at the 677th meeting of the Ministers’ Deputies, the Committee of Ministers, agreeing with the Commission’s proposals, held by a decision adopted on 15 July 1999, in accordance with former Article 32, paragraph 2, of the Convention, that the government of the respondent state was to pay the applicant as just satisfaction, within three months, a total sum of 37 500 French francs all damages taken together, and that interest should be payable on any unpaid sum, calculated on the basis of each full elapsed month of delay at the statutory rate applicable on the date of this decision, it being understood that the interest would accrue from the expiry of the time-limit until full payment was placed at the disposal of the applicant;

Whereas the Committee of Ministers invited the government of the respondent state to inform it of the measures taken following its decisions of 12 November 1998 and 15 July 1999, having regard to France’s obligation under former Article 32, paragraph 4, of the Convention to abide by them;

Whereas during the examination of the case by the Committee of Ministers, the government of the respondent state accordingly gave the Committee information about the measures taken in consequence of the Committee’s decisions taken to avoid new violations of the same kind as those found in this case (this information appears in the appendix to this resolution);

Whereas the Committee of Ministers satisfied itself that on 31 August 1999, within the time-limit set, the government of the respondent state had paid the applicant the total sum of 37 500 French francs as just satisfaction,

Declares, after having taken note of the measures taken by the Government of France, that it has exercised its functions under former Article 32 of the Convention in this case.

Appendix to Final Resolution ResDH (2002)60

Information provided by the Government of France during the examination of the Iscache case by the Committee of Ministers

The French government states that there is no specific remedy in domestic law for compensating someone who, as in the Iscache case, was unable to secure, under Article 5, paragraph 4, a prompt decision on the lawfulness of his detention.

Under Article L 781-1 of the Code of Judicial Organisation however, the party concerned is entitled to compensation for any damage arising from a malfunctioning of the system of justice.

Apart from length-of-proceedings cases, the following have been found to fall within the scope of this article: detention on remand not intrinsically justified (decision of the Paris Court of Appeal of 14 June 1996), failure, attributable to the prosecutor’s office, to relocate proceedings (decision of the Paris Court of Appeal of 21 May 1991), or failure by the registry of the Criminal Court to issue an execution copy of a judgment (decision of the tribunal de grande instance of Thonon-les-Bains of 3 November 1994).

In view of the direct effect accorded the Convention and the case-law of the European Court of Human Rights by the French courts (see in particular Cass. Sociale 14 January 1999 Bozkurt , Cass. criminelle 16 January 2001 judgment no. 7688, Cass. criminelle 16 May 2001 judgment no. 3659) the failure, by the registry of an Indictments Chamber, to send a notice of appeal to the Court of Cassation, thereby depriving the applicant of a review of the lawfulness of his detention, as was the case with Mr Iscache , would most certainly be considered by the domestic courts as gross negligence incurring the liability of the State under Article L 781-1 of the Code of Judicial Organisation .

The Government of France considers that there is no risk of further violations similar to those found in this case and that it has, therefore, fulfilled its obligations under former Article 32 of the Convention.