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CASE OF TOMASI AGAINST FRANCE

Doc ref: 12850/87 • ECHR ID: 001-55615

Document date: May 4, 1994

Inbound citations: 2
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Cited paragraphs: 0
•
Outbound citations: 0

CASE OF TOMASI AGAINST FRANCE

Doc ref: 12850/87 • ECHR ID: 001-55615

Document date: May 4, 1994

Cited paragraphs only

The Committee of Ministers, under the terms of Article 54

(art. 54) of the Convention for the Protection of Human Rights

and Fundamental Freedoms (hereinafter referred to as "the

Convention"),

Having regard to the judgment of the European Court of Human

Rights in the Tomasi case against France delivered on

27 August 1992 and transmitted the same day to the Committee of

Ministers;

Recalling that the case originated in an application against

France lodged with the European Commission of Human Rights on

10 March 1987 under Article 25 (art. 25) of the Convention by

Mr Félix Tomasi, a French national, who claimed that during his

police custody he had suffered inhuman and degrading treatment

and who also criticised both the length of the proceedings he had

brought to challenge this treatment and the duration of his

detention on remand;

Recalling that the case was brought before the Court by the

Commission on 8 March 1991 and by the Government of France

on 13 May 1991;

Whereas in its judgment of 27 August 1992 the Court

unanimously:

- dismissed the Government's preliminary objection;

- held that there had been violations of Article 5,

paragraph 3, Article 3 and Article 6, paragraph 1 (art. 5-3,

art. 3, art. 6-1);

- held that the respondent state was to pay to the

applicant, within three months, 700 000 French francs for damage

and 300 000 French francs in respect of costs and expenses;

- dismissed the remainder of the claim for just

satisfaction;

Having regard to the Rules adopted by the Committee of

Ministers concerning the application of Article 54 (art. 54) of

the Convention;

Having invited the Government of France to inform it of the

measures which had been taken in consequence of the judgment of

27 August 1992, having regard to its obligation under Article 53

(art. 53) of the Convention to abide by it;

Whereas, during the examination of the case by the Committee

of Ministers, the Government of France gave the Committee

information about the measures taken in consequence of the

judgment, which information appears in the appendix to this

resolution;

Having satisfied itself that on 28 January 1993 the

Government of France paid the applicant the sums provided for in

the judgment of 27 August 1992,

Declares, after having taken note of the information

supplied by the Government of France, that it has exercised its

functions under Article 54 (art. 54) of the Convention in this

case.

Appendix to Resolution DH (94) 34

Information provided by the Government of France

during the examination of the Tomasi case

by the Committee of Ministers

In order to draw the attention of the courts to their

duties under Article 5, paragraph 3, and Article 6, paragraph 1

(art. 5-3, art. 6-1), of the Convention, the judgment of the

European Court of Human Rights has been published in the

information bulletin issued by the Court of Cassation. In

addition, Act 93-2 of 4 January 1993 (Article 102) has taken away

the privilege of jurisdiction which was an important reason for

the delays criticised under Article 6, paragraph 1 (art. 6-1).

The reforms of criminal procedure introduced by the

above-cited Act 93-2 and Act 93-1013 of 24 August 1994 have

furthermore increased the protection accorded to persons held in

police custody in order to prevent the repetition of the

violation of Article 3 (art. 3) of the Convention found in this

case. The main elements of the reform are the following:

1. The procedure in general

The first sub-paragraph of Article 63 of the Code of

Criminal Procedure states henceforth, no longer implicitly but

as a question of principle, that only an officer of the criminal

investigation police (police judiciaire) can place a person in

police custody.

The second sub-paragraph of Article 63, according to which

the detention of a simple witness can only last the time required

for the testimony to be taken, henceforth defines the persons who

may be considered as witnesses in a more restrictive way.

Lastly, the fourth sub-paragraph of Article 63 and the third

sub-paragraph of Article 77 clearly lay down in law the principle

that the fate of the persons vis-à-vis whom the nature of the

information gathered motivates proceedings - to be set free or

to be brought before a court - is to be decided by the public

prosecutor, and not by the criminal investigation police.

2. Information to be given to the public prosecutor or to

the investigation judge

The officer of the criminal investigation police shall as

soon as possible inform, as the case may be, the public

prosecutor or the investigation judge of the placement in

police custody.

3. The right to inform third parties

Every person kept in police custody has henceforth the right

to have a third party informed (a person with whom the detained

is usually living or a close relative or his employer) of the

detention (Article 63-2 of the Code).

4. The right to be examined by a doctor

Persons kept in police custody may henceforth be submitted

to a medical examination carried out by a doctor appointed by the

public prosecutor at their own request, or at that of their

families or the public prosecutor or the officer of the criminal

investigation police (Article 63-3 of the Code). In matters

governed by special regulations as far as medical surveillance

is concerned, namely in drug cases and in cases of detention of

minors under the age of 16, the intervention of a doctor is

compulsory.

5. Access to a lawyer

Article 63-4 of the Code henceforth provides that after

twenty hours the person held in custody may ask to be allowed to

speak for thirty minutes with a lawyer of his choice or appointed

by the Bâtonnier. The lawyer will not be allowed, for as long

as the custody is maintained, to reveal to anyone either the fact

that the meeting has taken place or the matters discussed. The

lawyer shall be informed before the meeting of the nature of the

crimes at issue in the investigation. This information is given

to the lawyer by the criminal investigation police. Those

responsible shall ensure that this new formality is mentioned in

the records.

The meeting with the lawyer shall only take place after

thirty-six hours of custody when the investigation involves facts

relating to certain specifically mentioned organised criminal

activities. The public prosecutor shall be informed as soon as

possible by the criminal investigation police if this exception

is applied. The public prosecutor must be put in such a

situation that he has strict control over the exercise of these

special provisions, inter alia as regards the qualification of

the facts held against the detained. The efficiency of this

control presupposes that the public prosecutor is informed before

the twenty-first hour of custody, that is to say, the time when

the lawyer shall normally intervene.

The lawyers involved are remunerated on conditions similar

to those applied in case of legal aid before the courts

(Article 47 of Act No. 93-1013).

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