Information Note on the Court’s case-law 189

October 2015

Benmouna and Others v. France (dec.) - 51097/13

Decision 15.9.2015 [Section V]

Article 2

Positive obligations

Failure to bring an action to establish State responsibility following suicide in custody: inadmissible

Facts – The applicants were respectively the parents, sisters and brother of M.B., who committed suicide in July 2009 by hanging himself whi le being held in police custody in connection with an offence of attempted aggravated extortion. His father did not believe that his son had committed suicide and lodged a criminal complaint. The public prosecutor requested the opening of a judicial invest igation for unintentional homicide. In September 2010 the investigating judge discontinued the proceedings. The applicants appealed to the Court of Appeal and the Court of Cassation, without success.

Law – Article 2 ( substantive aspect ): The applicants had not brought an action under Article L. 141‑1 of the Judicature Code, which allowed State responsibility for the defective operation of the justice system to be recognised by the courts, and provided for compensation to be awarded to victims and persons cl ose to them who could demonstrate that they had suffered indirect damage. While the legislation made this type of responsibility contingent on a finding that there had been a denial of justice or gross negligence, developments in the case-law had led the d omestic courts to interpret the latter concept more and more extensively.

In previous cases* the Court had considered that this remedy had not, at the relevant time, acquired a sufficient degree of legal certainty such that it could and should be used for the purposes of Article 35 § 1 of the Convention in the circumstances under consideration.

However, this reasoning did not apply in the present case, in which the events had occurred considerably later. Furthermore, several judgments had since been delive red by the Court of Cassation concerning State responsibility for the suicide of persons being held in detention in connection with a criminal investigation. Moreover, an application lodged with the Court following one such judgment in 2011, in which the C ourt of Cassation had found that the State’s responsibility was not engaged, had been declared inadmissible. The Court therefore considered that the remedy under Article L. 141‑1 of the Judicature Code had acquired a sufficient degree of legal certainty – at the latest by March 2011, that is, almost two years before the Court of Cassation judgment of 5 February 2013 – such that it could and should be used for the purposes of Article 35 § 1 of the Convention in the circumstances of the present case.

Accordin gly, the fact that the applicants had applied to join the criminal proceedings as civil parties did not exempt them from bringing an action to establish State responsibility for the defective operation of the justice system, an action which afforded greate r flexibility than a criminal prosecution and consequently had different prospects of success. In order to be successful, a criminal prosecution had to demonstrate that a criminal offence had been committed.

Conclusion : inadmissible (failure to exhaust dom estic remedies).

The Court also declared the application inadmissible with regard to the substantive aspect of Article 2 as being manifestly ill-founded, since it had not been demonstrated that the investigation carried out following M.B.’s death had been ineffective.

* Saoud v. France , 9375/02, 9 October 2007, Information Note 101 .

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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