TOMASI v. France
Application number
00012850/87
August 27, 1992
THE FOLLOWING CORRESPOND TO EXTRACTS FROM THE DECISION OF THE COURT. THE ORIGINAL PARAGRAPH NUMBERS HAVE BEEN LEFT INTACT TO FACILITATE CROSS REFERENCING WITH THE FULL JUDGMENT.
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission"), and then by the
Government of the French Republic ("the Government"), on 8 March and
13 May 1991, within the three-month period laid down by
Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of the
Convention. It originated in an application (no. 12850/87) against
the French Republic lodged with the Commission under Article 25
(art. 25) by a French national, Mr Félix Tomasi, on 10 March 1987.
AS TO THE FACTS
7. Mr Félix Tomasi, a French national born in 1952, resides at
Bastia (Haute-Corse). He is both a shopkeeper and a salaried
accountant. At the time of his arrest, he was an active member of a
Corsican political organisation, which put up candidates for the
local elections and of which he was the treasurer.
8. On 23 March 1983 the police apprehended him in his shop and
placed him in police custody until 25 March at Bastia central police
station.
They suspected him of having taken part in an attack at
Sorbo-Ocagnano (Haute-Corse) in the evening of 11 February 1982
against the rest centre of the Foreign Legion, which was unoccupied
at that time of the year. Senior Corporal Rossi and Private
Steinte, who, unarmed, were responsible for maintaining and guarding
the centre, had been shot at and wounded, the former fatally and the
latter very severely.
The attack had been carried out by a commando of several
persons wearing balaclava helmets to conceal their features. The
following day the "ex-FLNC" (the Corsican National Liberation
Front), a movement seeking independence which had been dissolved by
decree, had claimed responsibility for the attack and for
twenty-four other bomb attacks which had been perpetrated the same
night.
9. On 12 February 1982 the Bastia tribunal de grande instance
had opened an investigation relating to charges of murder, attempted
murder and the carrying of category 1 and category 4 weapons and
ammunition. The same day the investigating judge had issued
instructions for evidence to be taken on commission (commission
rogatoire) to the Regional Criminal Investigation Department (SRPJ)
of Ajaccio.
The criminal proceedings instituted against the applicant included:
The proceedings conducted in Bastia (25 March 1983 - 22 May 1985)
The proceedings conducted in Bordeaux (22 May 1985 - 27 May 1986)
73. The applicant's lawyers requested the Court to
"State that Mr Tomasi was the victim, during his custody
on police premises, of inhuman and degrading treatment in
violation of the provisions of Article 3 (art. 3) of the
Convention.
State that the proceedings brought by Mr Tomasi to obtain
compensation for the damage suffered as a result of such
treatment were not conducted within a reasonable time, in
violation of the provisions of Article 6 para. 1 (art. 6-1)
of the Convention.
State that, in detention on remand, Mr Tomasi was not
tried within a reasonable time or released pending trial, in
violation of the provisions of Article 5 para. 3 (art. 5-3)
of the Convention.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 PARA. 3 (art. 5-3)
75. According to the applicant, the length of his detention on
remand infringed Article 5 para. 3 (art. 5-3), which is worded as
follows:
"Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article (art. 5-1-c),
... shall be entitled to trial within a reasonable time or
to release pending trial. Release may be conditioned by
guarantees to appear for trial."
B. Merits of the complaint
82. Mr Tomasi considered the length of his detention on remand
excessive; the Government denied this, but the Commission agreed
with him.
83. The period to be taken into consideration began on
23 March 1983, the date of the applicant's arrest, and ended on
22 October 1988 with his release following the delivery of the
Gironde assize court's judgment acquitting him (see paragraphs 8 and
39 above). It therefore lasted five years and seven months.
84. It falls in the first place to the national judicial
authorities to ensure that, in a given case, the pre-trial detention
of an accused person does not exceed a reasonable time. To this end
they must examine all the circumstances arguing for or against the
existence of a genuine requirement of public interest justifying,
with due regard to the principle of the presumption of innocence, a
departure from the rule of respect for individual liberty and set
them out in their decisions on the applications for release. It is
essentially on the basis of the reasons given in these decisions and
of the true facts mentioned by the applicant in his applications for
release and his appeals that the Court is called upon to decide
whether or not there has been a violation of Article 5 para. 3
(art. 5-3).
The persistence of reasonable suspicion that the person
arrested has committed an offence is a condition sine qua non for
the validity of the continued detention, but, after a certain lapse
of time, it no longer suffices; the Court must then establish
whether the other grounds given by the judicial authorities
continued to justify the deprivation of liberty. Where such grounds
were "relevant" and "sufficient", the Court must also ascertain
whether the competent national authorities displayed "special
diligence" in the conduct of the proceedings (see, as the most
recent authority, the Clooth v. Belgium judgment of
12 December 1991, Series A no. 225, p. 14, para. 36).
1. The grounds for continuing the detention
85. In order to reject Mr Tomasi's applications for release, the
investigating authorities put forward - separately or together -
four main grounds: the seriousness of the alleged offences; the
protection of public order; the need to prevent pressure being
brought to bear on the witnesses or to avoid collusion between the
co-accused; and the danger of the applicant's absconding.
(a) Seriousness of the alleged offences
86. The investigating judges and the indictments divisions
stressed the particular or exceptional gravity of the offences of
which the applicant was accused (see paragraphs 22, 31, 34, 35 and
36 above).
87. The applicant did not deny this, but he regarded it as not
sufficient to justify pre-trial detention over such a long period of
time, in the absence of grounds for suspecting him other than his
membership of a nationalist movement. His period of detention
corresponded to the term of imprisonment that would actually be
served by a person sentenced to more than ten years' imprisonment.
88. The Government emphasised the consistent nature of the
statements of a co-accused, Mr Moracchini, implicating Mr Tomasi in
the preparation and organisation of the attack.
89. The existence and persistence of serious indications of the
guilt of the person concerned undoubtedly constitute relevant
factors, but the Court considers, like the Commission, that they
cannot alone justify such a long period of pre-trial detention.
(b) Protection of public order
90. The majority of the courts in question expressed forcefully,
and in very similar terms, the need to protect public order from the
prejudice caused by the offences of which the applicant was accused
(see paragraphs 16, 22, 34, 35 and 36 above).
The Government endorsed this reasoning, which was challenged
by the applicant and the Commission.
91. The Court accepts that, by reason of their particular
gravity and public reaction to them, certain offences may give rise
to public disquiet capable of justifying pre-trial detention, at
least for a time.
In exceptional circumstances - and subject, obviously, to
there being sufficient evidence (see paragraph 84 above) - this
factor may therefore be taken into account for the purposes of the
Convention, in any event in so far as domestic law recognises - as
in Article 144 of the French Code of Criminal Procedure - the notion
of prejudice to public order caused by an offence. However, this
ground can be regarded as relevant and sufficient only provided that
it is based on facts capable of showing that the accused's release
would actually prejudice public order. In addition, detention will
continue to be legitimate only if public order remains actually
threatened; its continuation cannot be used to anticipate a
custodial sentence (see, as the most recent authority, the Kemmache
v. France judgment of 27 November 1991, Series A no. 218, p. 25,
para. 52).
In the present case, the investigating judges and the
indictments divisions assessed the need to continue the deprivation
of liberty from a purely abstract point of view, merely stressing
the gravity of the offences (see, mutatis mutandis, the same
judgment, p. 25, para. 52) or noting their effects. However, the
attack against the Foreign Legion rest centre was a premeditated act
of terrorism, responsibility for which was claimed by a clandestine
organisation which advocated armed struggle. It had resulted in the
death of one man and very serious injuries to another. It is
therefore reasonable to assume that there was a risk of prejudice to
public order at the beginning, but it must have disappeared after a
certain time.
(c) Risk of pressure being brought to bear on the
witnesses and of collusion between the co-accused
92. Several judicial decisions adopted in this case were based
on the risk of pressure being brought to bear on the witnesses - the
Poitiers indictments division even referred to a "campaign of
intimidation" - and that of collusion between the co-accused; they
did not, however, give any details concerning such risks (see
paragraphs 16, 22 and 35 above).
93. According to the Government, the threats against
Mr Moracchini had made it impossible to consider releasing
Mr Tomasi. Mr Tomasi would have been able to increase the
effectiveness of the pressure brought to bear on Mr Moracchini, who
had been at the origin of the prosecution and who had tried to
commit suicide.
94. The applicant denied this, whereas the Commission did not
express a view.
95. In the Court's opinion, there was, from the outset, a
genuine risk that pressure might be brought to bear on the
witnesses. It gradually diminished, without however disappearing
completely.
(d) Danger of the applicant's absconding
96. The Government contended that there had been a danger that
the applicant would abscond. They invoked the seriousness of the
sentence which Mr Tomasi risked. They also drew support for their
view from the escape of Mr Pieri, who, facing prosecution for the
same offences as the applicant and having like him always protested
his innocence, had evaded recapture for three and a half years.
Finally, they stressed the special circumstances of the situation in
Corsica.
97. The applicant replied that he had been capable of providing
sufficient guarantees that he would appear for trial; these
guarantees resided in his status as a shopkeeper, his clean police
record and the fact that he was of good repute.
98. The Court notes in the first place that the reasoning put
forward by the Government in this respect did not appear in the
contested judicial decisions. The latter were admittedly based for
the most part on the need to ensure that Mr Tomasi remained at the
disposal of the judicial authorities (see paragraphs 16, 22, 31 and
35 above), but only one of them - the decision of the Poitiers
indictments division of 22 May 1987 - referred to a specific element
in this connection: the help which members of the ex-FLNC could have
given the applicant to enable him to evade trial (see paragraph 35
above).
In addition, the Court points out that the danger of
absconding cannot be gauged solely on the basis of the severity of
the sentence risked; it must be assessed with reference to a number
of other relevant factors which may either confirm the existence of
a danger of absconding or make it appear so slight that it cannot
justify detention pending trial (see, inter alia, the Letellier v.
France judgment of 26 June 1991, Series A no. 207, p. 19, para. 43).
In this case, the decisions of the judicial investigating
authorities contained scarcely any reason capable of explaining why,
notwithstanding the arguments advanced by the applicant in his
applications for release, they considered the risk of his absconding
to be decisive and why they did not seek to counter it by, for
instance, requiring the lodging of a security and placing him under
court supervision.
(e) Recapitulation
99. In conclusion, some of the reasons for dismissing
Mr Tomasi's applications were both relevant and sufficient, but with
the passing of time they became much less so, and it is thus
necessary to consider the conduct of the proceedings.
2. Conduct of the proceedings
100. According to the applicant, the case was not at all complex;
indeed the investigation had been completed as early as
18 October 1983, the date of the recapitulatory examination (see
paragraph 12 above). However, there had been numerous errors and
omissions on the part of the judicial authorities. In particular,
the public prosecutor had refused to make submissions
(réquisitions), requested investigative measures which had already
been carried out, asked for the transfer of jurisdiction from the
Bastia courts, instituted proceedings incorrectly in a court which
lacked jurisdiction and placed the accused at a considerable
distance from the investigating authority. The applicant
acknowledged that the Law of 30 December 1986 had complicated the
situation by making the Law of 9 September 1986 applicable to cases
already pending, but by that time Mr Tomasi had been in detention
for nearly four years. He complained that he had been questioned by
an investigating judge only once in five years, on 5 September 1985
in Bordeaux (see paragraph 19 above).
On the subject of his own conduct, he pointed out that he
had lodged twenty-one of his twenty-three applications for release
after his recapitulatory examination (see paragraphs 14, 21, 31 and
33-36 above) and that his appeal on points of law against the
decision of the Bordeaux indictments division of 27 May 1986 had led
to the decision being quashed for infringement of the rights of the
defence (see paragraph 25 above).
The Commission essentially agreed with the applicant's
position.
101. The Government, for their part, did not consider the length
of the detention in question unreasonable. They stressed in the
first place the complexity of the process of indicting the applicant
and his three co-accused, owing to the operation of the Law of
30 December 1986 and the joint jurisdiction of the indictments
divisions of Poitiers and Bordeaux (see paragraphs 17-18 and 24-30
above). They also pointed to the rhythm at which measures had been
taken in the proceedings as showing that the authorities had
consistently displayed due diligence, the two delays in the
investigation being the result of the relinquishment of jurisdiction
by the Bastia judge and the application of the Law of
30 December 1986 (ibid.). They criticised Mr Tomasi for having
filed several appeals to the Court of Cassation, in particular
against the first committal decision delivered on 27 May 1986 at
Bordeaux (see paragraph 25 above), which, they contended, had
substantially delayed the opening of the trial. Finally they
emphasised the large number of applications for release lodged by
the applicant and expressed the view that he was partly responsible
for the length of his detention.
102. The Court fully appreciates that the right of an accused in
detention to have his case examined with particular expedition must
not unduly hinder the efforts of the courts to carry out their tasks
with proper care (see, inter alia, mutatis mutandis, the Toth v.
Austria judgment of 12 December 1991, Series A no. 224, pp. 20-21,
para. 77). The evidence shows, nevertheless, that in this case the
French courts did not act with the necessary promptness. Moreover,
the principal public prosecutor at the Court of Cassation
acknowledged this in his opinion of 5 June 1991 before the
Compensation Board: the investigation "could have been considerably
shortened without the various delays noted", in particular from
November 1983 to January 1985 and from May 1986 to April 1988 (see
paragraph 41 above). Accordingly, the length of the contested
detention would not appear to be essentially attributable either to
the complexity of the case or to the applicant's conduct.
3. Conclusion
103. There has therefore been a violation of Article 5 para. 3
(art. 5-3).
II. ALLEGED VIOLATION OF ARTICLE 3 (art. 3)
104. Mr Tomasi claimed to have suffered during his period of
custody at Bastia police station ill-treatment incompatible with
Article 3 (art. 3), according to which:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
B. Merits of the complaint
107. In the circumstances of this case Mr Tomasi's complaint
raises two issues, which are separate although closely linked:
firstly that of the causal connection between the treatment which
the applicant allegedly suffered during his police custody and the
injuries noted subsequently by the investigating judge and the
doctors; and, secondly and if necessary, the gravity of the
treatment inflicted.
1. The causal connection between the treatment complained of
and the injuries noted
108. According to the applicant, the observation made on
25 March 1983 by the Bastia investigating judge and the reports
drawn up by various doctors at the end of his police custody (see
paragraphs 45, 47, 48 and 50 above) confirmed his statements, even
though it was, he said, to be regretted that the prison authorities
had failed to communicate the X-rays effected on 2 April 1983 at
Bastia Hospital (see paragraph 68 above). His body had borne marks
which had only one origin, the ill-treatment inflicted on him for a
period of forty odd hours by some of the police-officers responsible
for his interrogation: he had been slapped, kicked, punched and
given forearm blows, made to stand for long periods and without
support, hands handcuffed behind the back; he had been spat upon,
made to stand naked in front of an open window, deprived of food,
threatened with a firearm and so on.
109. The Government acknowledged that they could give no
explanation as to the cause of the injuries, but they maintained
that they had not resulted from the treatment complained of by
Mr Tomasi. The medical certificates showed, in their opinion, that
the slight bruises and abrasions noted were totally inconsistent
with the acts of violence described by the applicant; the
certificate of the Chief Medical Officer of Bastia Prison of
4 July 1989 had been drawn up a long time after the event and was in
complete contradiction with the earlier certificates. The
chronology of the interrogation sessions, which had not been
contested by the applicant, in no way corresponded to the
allegations. Finally, the five other persons in police custody at
the time had neither noticed nor heard anything, and although one of
them referred to Mr Tomasi's losing a tooth, this fact was not
mentioned by a doctor until six years later. In short, a clear
doubt subsisted, which excluded any presumption of the existence of
a causal connection.
110. Like the Commission, the Court bases its view on several
considerations.
In the first place, no one has claimed that the marks noted
on the applicant's body could have dated from a period prior to his
being taken into custody or could have originated in an act carried
out by the applicant against himself or again as a result of an
escape attempt.
In addition, at his first appearance before the
investigating judge, he drew attention to the marks which he bore on
his chest and his ear; the judge took note of this and immediately
designated an expert (see paragraphs 45 and 48 above).
Furthermore, four different doctors - one of whom was an
official of the prison authorities - examined the accused in the
days following the end of his police custody. Their certificates
contain precise and concurring medical observations and indicate
dates for the occurrence of the injuries which correspond to the
period spent in custody on police premises (see paragraphs 47, 48
and 50 above).
111. This conclusion makes it unnecessary for the Court to
inquire into the other acts which it is claimed the officials in
question carried out.
2. The gravity of the treatment complained of
112. Relying on the Ireland v. the United Kingdom judgment of
18 January 1978 (Series A no. 25), the applicant maintained that the
blows which he had received constituted inhuman and degrading
treatment. They had not only caused him intense physical and mental
suffering; they had also aroused in him feelings of fear, anguish
and inferiority capable of humiliating him and breaking his physical
or moral resistance.
He argued that special vigilance was required of the Court
in this respect in view of the particular features of the French
system of police custody, notably the absence of a lawyer and a lack
of any contact with the outside world.
113. The Commission stressed the vulnerability of a person held
in police custody and expressed its surprise at the times chosen to
interrogate the applicant. Although the injuries observed might
appear to be relatively slight, they nevertheless constituted
outward signs of the use of physical force on an individual deprived
of his liberty and therefore in a state of inferiority. The
treatment had therefore been both inhuman and degrading.
114. According to the Government, on the other hand, the "minimum
level of severity" required by the Court's case-law (see the Ireland
v. the United Kingdom judgment cited above and the Tyrer v. the
United Kingdom judgment of 25 April 1978, Series A no. 26) had not
been attained. It was necessary to take into account not only that
the injuries were slight, but also the other facts of the case:
Mr Tomasi's youth and good state of health, the moderate length of
the interrogations (fourteen hours, three of which were during the
night), "particular circumstances" obtaining in Corsica at the time
and the fact that he had been suspected of participating in a
terrorist attack which had resulted in the death of one man and
grave injuries to another. In the Government's view, the
Commission's interpretation of Article 3 (art. 3) in this case was
based on a misunderstanding of the aim of that provision.
115. The Court cannot accept this argument. It does not consider
that it has to examine the system of police custody in France and
the rules pertaining thereto, or, in this case, the length and the
timing of the applicant's interrogations. It finds it sufficient to
observe that the medical certificates and reports, drawn up in total
independence by medical practitioners, attest to the large number of
blows inflicted on Mr Tomasi and their intensity; these are two
elements which are sufficiently serious to render such treatment
inhuman and degrading. The requirements of the investigation and
the undeniable difficulties inherent in the fight against crime,
particularly with regard to terrorism, cannot result in limits being
placed on the protection to be afforded in respect of the physical
integrity of individuals.
3. Conclusion
116. There has accordingly been a violation of Article 3
(art. 3).
III. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
117. The applicant finally complained of the time taken to
examine his complaint against persons unknown, lodged together with
an application to join the proceedings as a civil party, in respect
of the ill-treatment which he had suffered during his police
custody. He relied on Article 6 para. 1 (art. 6-1), which is worded
as follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ..."
B. Merits of the complaint
1. Applicability of Article 6 para. 1 (art. 6-1)
120. In the Government's view, the contested proceedings did not
fall within the scope of the notion of "determination of ... civil
rights and obligations". By filing an application to join the
proceedings as a civil party, the person who claimed to be injured
by a criminal offence set in motion the prosecution or associated
himself with proceedings which had already been brought by the
prosecuting authority. He sought to secure the conviction and
sentencing of the perpetrator of the offence in question and did not
claim any pecuniary reparation. In other words, an investigation
opened upon the filing of such an application concerned the
existence of an offence and not that of a right.
121. Like the applicant and the Commission, the Court cannot
accept this view.
Article 85 of the Code of Criminal Procedure provides for
the filing of a complaint with an application to join the
proceedings as a civil party. According to the case-law of the
Court of Cassation (Crim. 9 February 1961, Dalloz 1961, p. 306),
that provision simply applies Article 2 of that Code which is worded
as follows:
"Anyone who has personally suffered damage directly caused
by an offence [crime, délit or contravention] may institute
civil proceedings for damages.
..."
The investigating judge will find the civil application
admissible - as he did in this instance - provided that, in the
light of the facts relied upon, he can presume the existence of the
damage alleged and a direct link with an offence (ibid.).
The right to compensation claimed by Mr Tomasi therefore
depended on the outcome of his complaint, in other words on the
conviction of the perpetrators of the treatment complained of. It
was a civil right, notwithstanding the fact that the criminal courts
had jurisdiction (see, mutatis mutandis, the Moreira de Azevedo v.
Portugal judgment of 23 October 1990, Series A no. 189, p. 17,
para. 67).
122. In conclusion, Article 6 para. 1 (art. 6-1) was applicable.
2. Compliance with Article 6 para. 1 (art. 6-1)
123. It remains to establish whether a "reasonable time" was
exceeded. The applicant and the Commission considered that it had
been, whereas the Government denied this.
(a) Period to be taken into consideration
124. The period to be taken into consideration began on
29 March 1983, the date on which Mr Tomasi filed his complaint; it
ended on 6 February 1989, with the delivery of the Court of
Cassation's judgment declaring the applicant's appeal from the
Bordeaux indictments division's decision inadmissible (see
paragraphs 46 and 67 above). It therefore lasted more than five
years and ten months.
(b) Reasonableness of the length of the proceedings
125. The reasonableness of the length of proceedings is to be
determined with reference to the criteria laid down in the Court's
case-law and in the light of the circumstances of the case, which in
this instance call for an overall assessment.
A reading of the decisions given in these proceedings (see
paragraphs 63, 66 and 67 above) shows that the case was not a
particularly complex one. In addition, the applicant hardly
contributed to delaying the outcome of the proceedings by
challenging in the Bordeaux indictments division the decision
finding no case to answer and by requesting that division to order a
further inquiry (see paragraph 64 above). Responsibility for the
delays found lies essentially with the judicial authorities. In
particular, the Bastia public prosecutor allowed more than a year
and a half to elapse before asking the Court of Cassation to
designate the competent investigating authority (see paragraphs 57-
58 above). The Bordeaux investigating judge heard Mr Tomasi only
once and does not seem to have carried out any investigative measure
between March and September 1985, and then between January 1986 and
January 1987 (see paragraphs 59-61 above).
There has accordingly been a violation of Article 6 para. 1
(art. 6-1).