RESOLUTION DH (97) 5
HUMAN RIGHTS
APPLICATION No. 17261/90
C. G. AGAINST FRANCE
(Adopted by the Committee of Ministers on 28 January 1997
at the 582nd meeting of the Ministers' Deputies)
The Committee of Ministers, under the terms of Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),
Having regard to the report drawn up on 6 July 1994 by the European Commission of Human Rights in accordance with Article 31 of the Convention relating to the application lodged on 20 April 1990 by Mr C. G. against France (Application No. 17261/90);
Whereas on 1 August 1994 the Commission transmitted the said report to the Committee of Ministers and whereas the period of three months provided for in Article 32, paragraph 1, of the Convention has elapsed without the case having been brought before the European Court of Human Rights in pursuance of Article 48 of the Convention;
Whereas in his application, declared admissible by the Commission on 30 August 1993, the applicant, who had been kept in detention on remand, complained of a breach of the right to respect for his family life on account of the refusal to give permission to his family to visit him at his place of detention, of the lack of an effective remedy under French law against such a refusal, of having been subjected to inhuman and degrading treatment on account of the lack of any communication with his family and of an unjustified interference by the public authorities with his freedom of expression;
Whereas in its report the Commission expressed, unanimously, the opinion that there had been a violation of Article 8 of the Convention, by twenty-five votes to one, that there had been a violation of Article 13 of the Convention and, unanimously, that there had been no violation of Article 3 of the Convention and that it was not necessary to examine the complaint under Article 10 of the Convention;
Whereas, at the 522nd meeting of the Ministers' Deputies held on 6 December 1994, the Committee of Ministers, agreeing with the opinion expressed by the Commission, held, having voted in accordance with the provisions of Article 32, paragraph 1, of the Convention, that there had been in this case a violation of Article 8 of the Convention, that there had been in this case a violation of Article 13, of the Convention and that there had been no violation of Article 3 of the Convention;
Whereas the Committee of Ministers examined the proposals made by the Commission when transmitting its report as regards just satisfaction to be awarded to the applicant, proposals supplemented by a letter of the President of the Commission dated 13 April 1995;
Whereas, at the 564th meeting of the Deputies, the Committee of Ministers held, by a decision adopted on 15 May 1996, in accordance with Article 32, paragraph 2, of the Convention, that the Government of France was to pay the applicant as just satisfaction, within three months, 10 000 French francs in respect of non-pecuniary damage and that interest should be payable on any non-paid sum at the statutory rate applicable on the date of this decision, it being understood that the interest will accrue from the expiry of the time-limit until full payment is placed at the disposal of the applicant;
Whereas the Committee of Ministers invited the Government of France to inform it of the measures taken following its decisions of 6 December 1994 and 15 May 1996, having regard to France's obligation under Article 32, paragraph 4, of the Convention to abide by them;
Whereas, during the examination of the case by the Committee of Ministers, the Government of France gave the Committee information about the measures taken in consequence of the Committee's decisions, which information appears in the appendix to this resolution;
Whereas the Committee of Ministers satisfied itself that on 18 July 1996, within the time-limit set, the Government of France paid the applicant the total sum of 10 000 French francs as just satisfaction,
Declares, having taken note of the measures taken by the Government of France, that it has exercised its functions under Article 32 of the Convention in this case;
Authorises the publication of the report adopted by the Commission in this case.
Appendix to Resolution DH (97) 5
Information provided by the Government of France
during the examination of the case of C. G.
by the Committee of Ministers
Article 145-3 of the Code of Criminal Procedure, as amended by Law No. 93-2 of 4 January 1993, can offer an answer to the difficulties found in the present case. On the one hand, it specifies the conditions under which authorisation to communicate (permis de communiquer), is granted by the investigating judge to persons kept in detention on remand. On the other hand, it provides for the possibility of appeal against the refusal to grant such an authorisation.
The first paragraph of Article 145-3 provides explicitly that every person kept in detention on remand may receive visits, and be so authorised by the investigating judge, insofar as he or she is not subject to a prohibition to communicate. This prohibition to communicate can be given only for a period of ten days, which can be renewed only once.
Moreover, Article 145-3, paragraph 2, second sentence, provides that:
“at the expiry of a period of one month from the first day of detention on remand, the investigating judge can only refuse to give authorisation for a visit to a member of the family of the detained person through a written decision containing specific reasons in the light of the needs of the investigation.”
Furthermore, the decision of the investigating judge shall be notified without delay to the accused who has the possibility to appeal to the president of the Indictments Chamber “who shall give a ruling within five days by means of a reasoned written decision, which is not subject to appeal. When the president of the Indictments Chamber quashes the decision of the investigating judge, he himself shall give the authorisation for a visit.”
The French Government considers that these new measures will prevent the repetition of the violations found in the present case and that France has accordingly fulfilled its obligations under Article 32 of the Convention.
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