JOINT DISSENTING OPINION OF JUDGES PALM, Sir N icolas BRATZA, FISCHBACH, ZUPANČIČ AND HEDIGAN

( Translation )

The Court has held that the application is inadmissible by reason of Mr Civet’s failure to exhaust domestic remedies in that he did not lodge an appeal on points of law during his pre-trial detention. We wish to indicate our disagreement with the reasoning adopted and the result reached by the majority of the judges.

The Court held that the Government’s argument should prevail, in view of the scope of the Court of Cassation’s review. For the avoidance of any misunderstanding, we consider it useful, as a preliminary, to state the points on which we are in agreement with the majority of the judges.

In the first place, it is not our intention to dispute that “an appeal to the Court of Cassation is one of the remedies that should in principle be exhausted in order to comply with Article [35]” (see the Remli v. France judgment of 23 April 1996, Reports of Judgments and Decisions 1996-II, p. 572, § 42). The fact remains that the only remedies that must be exhausted are those that are effective and capable of redressing the alleged violation and that “it falls to the respondent State to establish that these various conditions are satisfied” (see, in particular, the Vernillo v. France judgment of 20 February 1991, Series A no. 198, pp. 11-12, § 27). Where the Government do not succeed in supporting their argument concerning the sufficiency and effectiveness of the remedy, the European Court is entitled to consider that the appeal on points of law does not meet the requirement of effectiveness (see the Dalia v. France judgment of 19 February 1998, Reports 1998-I, pp. 87-88, § 38). The Court has already had occasion to attach only limited significance to an appeal on points of law in another context. In the cases of Letellier and Navarra v. France it held that there had been no violation of Article 5 § 4 – despite overall lengths of time, including proceedings in appeals on points of law, which gave the Court “certain doubts” – on the ground that the review requirement of Article 5 § 4 was satisfied by the right to make fresh applications for release to the investigating judge at any time (see the judgments of 26 June 1991, Series A no. 207, p. 22, § 56, and 23 November 1993, Series A no. 273-B, pp. 28-29, § 29, respectively). There are thus exceptions to the principle that an appeal on points of law must be lodged, and some of them have already been pointed out by our Court.

In the second place, we do not wish to call in question or minimise the importance of the Court of Cassation’s case-law. As the Code of Criminal Procedure makes it compulsory to give reasons for decisions to order or extend pre-trial detention, the Court of Cassation reviews whether that statutory requirement has been satisfied. There is no doubt that in the context of that review it would be artificial to distinguish between “fact” and “law”, the more so as the Court of Cassation verifies that the reasoning, in accordance with the law, is based on the particular facts of the case and does not, for example, consist of stereotyped reasons (the Commission’s decision does not mention this detail, but does not put it in doubt). In its judgments the Court of Cassation also refers to the concept of “unappealable assessment by the tribunals of fact”. What is the import of this expression? It refers to the Court of Cassation’s role as a tribunal of law and not of fact. As it is not a final court of appeal on the facts, the Court of Cassation does not have the task of re-examining factual matters. It may nonetheless review the way in which the tribunals of fact have applied rules of law to their unappealable findings and assessments of “fact”. The cases cited by our Court in its judgment say precisely that.

We therefore return to the essential point: what, exactly, was the issue that the Court had to decide? The question was whether an appeal on points of law is capable of remedying the alleged prejudice where an applicant complains only of the length of his or her pre-trial detention (which is a “key” issue in relation to Article 5 § 3).

In its judgment the Court answers the question by linking that complaint to the reasoning of indictment-division judgments. The question of length is thus said never to arise per se , in isolation, but always in relation to the reasoning adopted by the indictment division under the control of the Court of Cassation. “Length” and “reasoning” are said to be inseparable; hence the effectiveness of an appeal on points of law.

Accordingly, we think it necessary to look at the problem in a different way, by means of hypotheses reflecting real situations.

1 . An applicant disputes one or more findings of “fact” referred to by the tribunals of fact as justifying placing or keeping him or her in detention: Will the applicant be able to challenge them in an appeal on points of law? The answer is no . That is confirmed by the foregoing reference to the case-law; the Court of Cassation has no jurisdiction where what is at issue is the unappealable assessment of the circumstances of the case. This, then, is one instance in which it is unnecessary to bring an appeal on points of law.

2 . An applicant considers that notwithstanding the reasons put forward (or likely to be put forward) by the indictment division, the length of his or her pre-trial detention is unjustified per se : Will that applicant be able to challenge it effectively in an appeal on points of law? The answer will depend on a number of variables:

(a) yes, if the applicant complains that the reasons cannot justify keeping him or her in detention (because they are stereotyped, or are not sufficiently supported by the facts of the case or are inconsistent with each other or do not address essential grounds);

(b) no, if the applicant disputes the assessments of fact underlying the reasons (which he or she may consider false, tendentious, etc.);

(c) no, if the applicant does no more than say that, regardless of the facts noted by the indictment division and the inferences it has drawn from them, he or she denies having committed offences and seeks to benefit from the presumption of innocence;

(d) no, if the length of the detention is itself in issue, that is to say if, irrespective of the merits of the reasons put forward by the tribunals of fact, the length of pre-trial detention is excessive per se .

In all the instances in which the answer is “no”, the applicant can only make fresh applications to the investigating judge and then, if need be, apply to the indictment division, in the hope of changing their minds; an appeal on points of law is therefore not an effective remedy.

We should like to lay particular emphasis on the assessment of whether the length of detention is reasonable or not, a recurring and crucial problem for our Court.

The French Government did not produce any judgment

(a) in which the Court of Cassation of its own motion condemned pre-trial detention on the ground that it had lasted too long notwithstanding the contrary opinion and detailed reasons of the indictment division; or

(b) a fortiori , in which it was established that the Court of Cassation, having noted of its own motion an excessive length of detention, could release the detainee on that sole ground (and not by reason of a breach of a statutory provision whose infringement automatically entails the release of the person concerned).

It will also be noted that in the cases in which the Convention institutions considered that there had been a breach of Article 5 § 3 of the Convention on account of excessive length of pre-trial detention an appeal on points of law had previously been lodged with the Court of Cassation, which had not criticised the length of detention or even attempted to do so (see, in particular, the following judgments: Letellier and Navarra, both cited above; Kemmache v. France (nos. 1 and 2), 27 November 1991, Series A no. 218; Muller v. France, 17 March 1997, Reports 1997-II).

More significantly still, our Court’s judgment is at odds with the case-law of the Criminal Division of the Court of Cassation itself, in particular its judgments of 18 February and 6 March 1986 ( Bull . crim ., nos. 66 and 94 respectively) and 12 December 1988 ( Bull . crim ., nos. 418 and 419), which were cited by the Commission. Those judgments characterise the ground based on Article 5 § 3 of the Convention either as a “ground of pure fact” or as “a ground of mixed fact and law”, so that in every instance it was declared inadmissible. In particular, in its judgment of 6 March 1986 the Court of Cassation dealt with the ground based on a violation of Article 5 § 3 in the following terms, which are quite unequivocal:

“Lastly, the Indictment Division addressed the issue of the complexity and length of the proceedings. While it only referred expressly to Article 6 of the European Convention for the Protection of Human Rights, it is to be inferred from its decision to refuse the application for release that it considered that the length of the detention itself did not exceed a reasonable time. The Court of Cassation has no jurisdiction to review that assessment of fact .” (emphasis added)

Other judgments have followed, confirming that the issue of whether the length of pre-trial detention is reasonable or not is an issue of fact which lies outside the Court of Cassation’s jurisdiction (in particular, judgments of 28 November 1991, periodical Droit pénal 1991, commentary 274; and 3 May 1993, Bull . crim ., no. 160). The European Court had an earlier opportunity to be persuaded of the reality of that case-law when considering the Muller case (cited above). In that case the Court of Cassation had held, more than four years after pre-trial detention had begun:

“In order to answer the submission that there had been a violation of Article 5 § 3 of the Convention on the ground that pre-trial detention had exceeded a reasonable time, the court below stated: ‘In the instant case, in view of its complexity and the number of offences with which the accused is charged, this “reasonable time” has not been exceeded’ .

The Court of Cassation has no jurisdiction to review that assessment of fact .” (emphasis added) (judgment of 23 March 1993, quoted in the Muller judgment cited above, p. 384, § 28)

Lastly, confirmation that a ground based on excessive length itself (which can in reality be assessed separately from the question of the reasoning adopted) is inadmissible may be found in another case decided by the Criminal Division of the Court of Cassation in which periods of time were concerned. A number of new provisions were added to the Code of Criminal Procedure by Law no. 96-1235 of 31 December 1996; these included Article 144-1, which expressly refers to the concept of “reasonable time”, and Article 145-3, which provides that orders whereby investigating judges either direct that pre-trial detention should be extended or refuse an application for release must also contain, among other things, “the information in the particular case which justifies ... the forecast of how long it will take to complete the proceedings”. Here, then, as with the issue which concerns us now, there is a question of “time” which has to be assessed, giving rise to a decision for which the law requires that special reasons must be given. Does that make it a question of law that can be reviewed by the Court of Cassation? The answer is no ; the assessment of that time is “a question of pure fact which the Court of Cassation has no jurisdiction to review” (Cass. Crim., 28 April 1998, appeal no. 98-80,754, Recueil Dalloz-Sirey 1998, Information in brief, p. 172).

We are thus persuaded that the assessment of a period of time, whether one laid down in the Convention or in domestic law, lies outside the jurisdiction of the Court of Cassation. This was noted by the Commission, which took care to examine the issue of admissibility in plenary session, and it was only after its decision on admissibility had been taken – unanimously – that it referred the case to a Chamber for consideration of the merits.

It therefore seems to us that the position taken by the majority of the judges cannot be reconciled with these numerous instances in which an appeal on points of law does not allow the alleged prejudice to be remedied. In particular, the extracts from three decisions of the Court of Cassation in the judgment (see “Relevant domestic law and practice”) represent settled case-law only on the obligation on indictment divisions to address “essential” grounds, notably those based on Article 5 § 3; but that does not entail any review by the Court of Cassation of either the period of time itself or the unappealable assessment by the tribunals of fact.

The present case is undoubtedly one of those instances in which an appeal on points of law is ineffective: the applicant protested his innocence, challenged the findings of “fact” referred to by the tribunals of fact to justify placing and then keeping him in detention, sought to benefit from the presumption of innocence and complained of the length of the detention per se ; in short, no grounds on which an appeal on points of law could be effective.

[1] Notes by the Registry

-2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

[3] 3. Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis.

[2] . Note by the Registry . Rules of Court A applied to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and from then until 31 October 1998 only to cases concerning States not bound by that Protocol.

[3] . Note by the Registry . For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions  of the Court), but a copy of the Commission’s report is obtainable from the Registry.