TOMASI v. France

Application number 00012850/87

August 27, 1992










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.




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



        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



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



          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.







75.     According to the applicant, the length of his detention on

remand infringed Article 5 para. 3 (art. 5-3), which is worded as



          "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



           (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



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



        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



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).




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



        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).




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).