Orzeczenie: Brusco v. France
Komentarz Emmanuela Daeschler (w j. angielskim) do wyroku Brusco v. France. Wyrok dotyczy naruszenia przez Francję gwarantowanego przez Europejską Konwencję Praw Człowieka prawa do wolności i bezpieczeństwa osobistego i prawa do rzetelnego procesu sądowego. Wyrok jest niezmiernie ważnym krokiem, który doprowadził do reformy prawa francuskiego w tym zakresie.
The case Brusco v. France is the first one in which it was claimed in front of
the European Court of Human Rights (hereinafter the ECHR) that the French regime
of police custody was illegal when observed in the light of the relevant dispositions of the European Convention of Human Rights and Fundamental Freedoms, but is not surprising. Indeed some evidence show that French authorities were aware of the risks to be once condemned by the ECHR since, at the national level, the Senate published in December 2009 a working document comparing the police custody procedures in other European legal systems and underlining the “limited character of the lawyer’s intervention during
police custody” amongst a list of French specificities. At the level of the case-law of the Court of Strasbourg itself, one should cite two cases concerning the Republic of Turkey: Salduz (27th of November 2008, req. 36391/02) and Dayanan (13th of October 2009, req. 7277/03), respectively stating that the detainee can benefit of the assistance of a lawyer as soon as the first moments of his interrogation by the police, and that an equitable criminal procedure requires that the suspected person can be assisted by a lawyer as soon as he is in police custody or in pre-trial detention.
This opened large doors for France to be sanctioned by the Strasbourg Court soon, as the French regime in force at that time was not in conformity with any of these requirements.
Pursuing the purpose of explaining the reasons of the unconventionality of the French statute and its corrections, one has first to remember the decision of last October, and then to examine the statute recently passed to remedy it and it’s functioning.
I. The Brusco case: the first decision stating the non-conformity to ECHR standards of the French police custody.
A. Facts and proceedings at the national level.
The facts of the case were the following: the claimant at the ECHR, M. Brusco was accused and suspected of acts of violence towards B.M. in a car-park. He was arrested by the police the 7th of June 1999 and while he was being questioned the following day, he twice declared “I swear to tell all the truth, only the truth”. He met a counsel after these declarations only, and his custody was prolonged by a judge. He was then charged of trying to kill someone and placed into pre-trial detention.
He then sought to annul all the documents of the hearings in Court but was dismissed, stating that the necessities of the enquiry lawfully obliged him to take this oath in virtue of article 153 of the French penal Code. This decision was confirmed by all the Courts at the national level.
At the time of the proceedings, one relevant disposition of French law (article 63-4 of the French code of criminal procedure) provided that a person in police custody has the right to discuss with a lawyer after 20 hours of custody.
B. Holdings of the European Court of Human Rights.
Before the Strasbourg judges, the claimant alleged a violation of article 6-3 (among others) of the Convention that provides for the right to have be assisted by a lawyer and even to be provided a lawyer if one has no sufficient financial resource to afford it.
The ECHR first states in its decision that the right not to incriminate oneself and the right to keep silent are internationally recognized as parts of the right to equitable court proceedings of the article 6. Secondly it states that a person in police custody shall have the right to be assisted by a lawyer from the beginning of the procedure, a fortiori when this
person has not been informed of the possibility to keep silent. French law is clearly observed not to be in coherence with the standards protected by the ECHR.
A very few days after (the 19th of October 2010) and independently of the holding of the ECHR, the French Court of Cassation decided in three joined cases (n°5699, n°5700 and n°5701) on important points of the French criminal procedure:
- A person in police custody should be informed of the right to keep silent,
- A person in police custody shall have the right to be assisted by a lawyer in conditions providing the possibility to organize his defense and to prepare his auditions, in which the lawyer must be able to participate.
II. The statute of the 14th April of 2011 as an effective remedial?
To understand the way the reform has been conducted, it is to be noted that the French Constitutional Court itself had considered even before the ECHR’s decision that the regime of the French police custody was unconstitutional in a decision of the 30th of July 2010 (decision n°2010-14/22), abrogating a few relevant dispositions of the code of criminal procedure, but postponing the effects of this abrogation to the 1st of July 2011.
The Government knew from then on that it had one year to prepare the reform.
A. Entry into force.
The reform has been voted and published at the beginning of April 2011 and was to enter into force on the 1st of June of the same year. This was without counting on the Court of Cassation, which surprised everyone in four decisions of the 15th of April.
These decisions concerned cases in which foreigners were parties and more precisely the application to their police custody prior to their placement in administrative detention. The Court of Cassation decided that there was no reason not to apply them the reform, and moreover that it was not necessary to wait for it to enter into force to apply it. The Ministry of Justice immediately transmitted information to police officers that they shall inform any person in police custody of his or her right to remain silent and of the right to be
assisted by a lawyer.
The local professional associations of lawyers declared that they were prepared
to this eventuality and quickly organized themselves to assist the citizen hold
in custody. The policemen trade-unions criticized the manner they had to
implement the reform.
B. Practical issues after a few weeks of enforcement.
Lawyers are globally satisfied of the way that the police officers permit them to perform their new duty. They now have the possibility to discuss with their clients, before their audition, of the defense strategy they will adopt. They nonetheless lament the fact that the lawyer still has no access to all the documents at the disposition of the case and consequently cannot adapt in advance their defense to the evidence or statements the police possesses. Moreover, police custody still is not placed under the control of a judge, but is under the supervision of the public prosecutor, who is not an independent
body. These could be grounds for upcoming condemnation in Strasbourg.
Lawyers observe that the reform did not abolish the alternative procedure to police custody that is the one of “free audition” that still permits to question a person without the assistance of a lawyer. One can imagine that police custody might become the exceptional procedure and free audition to become more common.
One other advantage the lawyers underline is that this assistance makes the relationship between the policemen and the detainee more peaceful and not aggressive. On the financial point of view, lawyers have been criticizing the little money accorded to this program and the low level of remuneration of lawyers that are to assure these basic service duties in police premises. It is considered that the number of police custody will decrease because of the costs of the new procedure and its complexity; policemen will think twice before they decide to put someone in custody, especially for minor infringements to criminal law.
On the organizational point of view, lawyers consider that there should be no problem to ensure effective and numerous enough basic service, noting that it is desirable that they should be informed in advance to hold themselves ready if police is to act soon to dismantle vast criminal networks. Understandably lawyers will not be informed in advance of the nature of the facts.
Notwithstanding notable improvements, the reform of criminal procedure is still unsatisfactory on many points and is still at risk to be one day declared not conform to ECHR standards.
the European Court of Human Rights (hereinafter the ECHR) that the French regime
of police custody was illegal when observed in the light of the relevant dispositions of the European Convention of Human Rights and Fundamental Freedoms, but is not surprising. Indeed some evidence show that French authorities were aware of the risks to be once condemned by the ECHR since, at the national level, the Senate published in December 2009 a working document comparing the police custody procedures in other European legal systems and underlining the “limited character of the lawyer’s intervention during
police custody” amongst a list of French specificities. At the level of the case-law of the Court of Strasbourg itself, one should cite two cases concerning the Republic of Turkey: Salduz (27th of November 2008, req. 36391/02) and Dayanan (13th of October 2009, req. 7277/03), respectively stating that the detainee can benefit of the assistance of a lawyer as soon as the first moments of his interrogation by the police, and that an equitable criminal procedure requires that the suspected person can be assisted by a lawyer as soon as he is in police custody or in pre-trial detention.
This opened large doors for France to be sanctioned by the Strasbourg Court soon, as the French regime in force at that time was not in conformity with any of these requirements.
Pursuing the purpose of explaining the reasons of the unconventionality of the French statute and its corrections, one has first to remember the decision of last October, and then to examine the statute recently passed to remedy it and it’s functioning.
I. The Brusco case: the first decision stating the non-conformity to ECHR standards of the French police custody.
A. Facts and proceedings at the national level.
The facts of the case were the following: the claimant at the ECHR, M. Brusco was accused and suspected of acts of violence towards B.M. in a car-park. He was arrested by the police the 7th of June 1999 and while he was being questioned the following day, he twice declared “I swear to tell all the truth, only the truth”. He met a counsel after these declarations only, and his custody was prolonged by a judge. He was then charged of trying to kill someone and placed into pre-trial detention.
He then sought to annul all the documents of the hearings in Court but was dismissed, stating that the necessities of the enquiry lawfully obliged him to take this oath in virtue of article 153 of the French penal Code. This decision was confirmed by all the Courts at the national level.
At the time of the proceedings, one relevant disposition of French law (article 63-4 of the French code of criminal procedure) provided that a person in police custody has the right to discuss with a lawyer after 20 hours of custody.
B. Holdings of the European Court of Human Rights.
Before the Strasbourg judges, the claimant alleged a violation of article 6-3 (among others) of the Convention that provides for the right to have be assisted by a lawyer and even to be provided a lawyer if one has no sufficient financial resource to afford it.
The ECHR first states in its decision that the right not to incriminate oneself and the right to keep silent are internationally recognized as parts of the right to equitable court proceedings of the article 6. Secondly it states that a person in police custody shall have the right to be assisted by a lawyer from the beginning of the procedure, a fortiori when this
person has not been informed of the possibility to keep silent. French law is clearly observed not to be in coherence with the standards protected by the ECHR.
A very few days after (the 19th of October 2010) and independently of the holding of the ECHR, the French Court of Cassation decided in three joined cases (n°5699, n°5700 and n°5701) on important points of the French criminal procedure:
- A person in police custody should be informed of the right to keep silent,
- A person in police custody shall have the right to be assisted by a lawyer in conditions providing the possibility to organize his defense and to prepare his auditions, in which the lawyer must be able to participate.
II. The statute of the 14th April of 2011 as an effective remedial?
To understand the way the reform has been conducted, it is to be noted that the French Constitutional Court itself had considered even before the ECHR’s decision that the regime of the French police custody was unconstitutional in a decision of the 30th of July 2010 (decision n°2010-14/22), abrogating a few relevant dispositions of the code of criminal procedure, but postponing the effects of this abrogation to the 1st of July 2011.
The Government knew from then on that it had one year to prepare the reform.
A. Entry into force.
The reform has been voted and published at the beginning of April 2011 and was to enter into force on the 1st of June of the same year. This was without counting on the Court of Cassation, which surprised everyone in four decisions of the 15th of April.
These decisions concerned cases in which foreigners were parties and more precisely the application to their police custody prior to their placement in administrative detention. The Court of Cassation decided that there was no reason not to apply them the reform, and moreover that it was not necessary to wait for it to enter into force to apply it. The Ministry of Justice immediately transmitted information to police officers that they shall inform any person in police custody of his or her right to remain silent and of the right to be
assisted by a lawyer.
The local professional associations of lawyers declared that they were prepared
to this eventuality and quickly organized themselves to assist the citizen hold
in custody. The policemen trade-unions criticized the manner they had to
implement the reform.
B. Practical issues after a few weeks of enforcement.
Lawyers are globally satisfied of the way that the police officers permit them to perform their new duty. They now have the possibility to discuss with their clients, before their audition, of the defense strategy they will adopt. They nonetheless lament the fact that the lawyer still has no access to all the documents at the disposition of the case and consequently cannot adapt in advance their defense to the evidence or statements the police possesses. Moreover, police custody still is not placed under the control of a judge, but is under the supervision of the public prosecutor, who is not an independent
body. These could be grounds for upcoming condemnation in Strasbourg.
Lawyers observe that the reform did not abolish the alternative procedure to police custody that is the one of “free audition” that still permits to question a person without the assistance of a lawyer. One can imagine that police custody might become the exceptional procedure and free audition to become more common.
One other advantage the lawyers underline is that this assistance makes the relationship between the policemen and the detainee more peaceful and not aggressive. On the financial point of view, lawyers have been criticizing the little money accorded to this program and the low level of remuneration of lawyers that are to assure these basic service duties in police premises. It is considered that the number of police custody will decrease because of the costs of the new procedure and its complexity; policemen will think twice before they decide to put someone in custody, especially for minor infringements to criminal law.
On the organizational point of view, lawyers consider that there should be no problem to ensure effective and numerous enough basic service, noting that it is desirable that they should be informed in advance to hold themselves ready if police is to act soon to dismantle vast criminal networks. Understandably lawyers will not be informed in advance of the nature of the facts.
Notwithstanding notable improvements, the reform of criminal procedure is still unsatisfactory on many points and is still at risk to be one day declared not conform to ECHR standards.
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Dodano: 2011-06-29 12:19:45
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