In the case of Birou v. France*,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention")** and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr A. Spielmann,
Mrs E. Palm,
Mr I. Foighel,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr F. Bigi,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 24 February 1992,
Delivers the following judgment, which was adopted on that date:
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Notes by the Registrar
* The case is numbered 70/1991/322/394. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 12 July 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. 13319/87) against the French Republic lodged
with the Commission under Article 25 (art. 25) by Mr Roland Birou, a
French national, on 16 September 1987.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby France recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the
facts of the case disclosed a breach by the respondent State of its
obligations under Article 5 para. 3 (art. 5-3).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that
he wished to take part in the proceedings and designated the lawyer
who would represent him (Rule 30).
3. The Chamber to be constituted included ex officio
Mr L.-E. Pettiti, the elected judge of French nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 29 August 1991 the
President drew by lot the names of the other seven members, namely
Mr F. Gölcüklü, Mr A. Spielmann, Mrs E. Palm, Mr I. Foighel,
Mr A.N. Loizou, Mr J.M. Morenilla and Mr F. Bigi (Article 43 in fine
of the Convention and Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of
the French Government ("the Government"), counsel for the applicant
and the Delegate of the Commission on the organisation of the
procedure (Rule 37 para. 1).
5. An attempt to reach a friendly settlement gave rise, between
14 November 1991 and 6 February 1992, to a number of letters and
telephone conversations between the Government, the applicant's
lawyer and the Registrar.
6. On 6 February 1992 the Government communicated to the
Registrar the terms of an agreement which had been reached with the
applicant. On 13 February the applicant confirmed his acceptance of
the agreement.
The Delegate of the Commission was consulted and raised no
objection.
7. On 24 February 1992 the Court decided to dispense with a
hearing in the case, having satisfied itself that the conditions for
this derogation from its usual procedure had been met (Rules 26
and 38).
AS TO THE FACTS
8. Mr Roland Birou, a French national, was suspected of having
taken part in two armed robberies. On 23 July 1983 he was charged
and remanded in custody by an investigating judge at the
Aix-en-Provence tribunal de grande instance.
He submitted a series of unsuccessful applications for release to
the indictments division of the Aix-en-Provence Court of Appeal
(judgments of 12 December 1984 and 27 August 1985) and the
Bouches-du-Rhône Assize Court (judgments of 16 April, 19 June and
28 October 1986, 28 January and 1 October 1987 and 7 January 1988).
The applicant's appeal to the Court of Cassation against the
above-mentioned judgment of 28 January 1987 on the grounds of formal
defects was dismissed on 30 June 1987. On 3 October 1988 the Court
of Cassation quashed for want of jurisdiction the indictments
division's decision of 23 June 1988 dismissing a further application
for release by Mr Birou. The case was remitted to the Assize Court,
which granted the application on 19 October 1988. Two days later,
the court convicted the applicant and sentenced him to eight years'
imprisonment; the period spent in detention on remand fell, by
operation of law, to be deducted from the term of imprisonment
(Article 24 of the Criminal Code).
PROCEEDINGS BEFORE THE COMMISSION
9. Mr Birou lodged his application with the Commission on
16 September 1987. He alleged that the length of his detention on
remand had exceeded the "reasonable time" required under
Article 5 para. 3 (art. 5-3) of the Convention.
10. The Commission declared the application (no. 13319/87)
admissible on 1 October 1990. In its report of 17 April 1991
(Article 31) (art. 31), it expressed the unanimous opinion that
there had been a violation of Article 5 para. 3 (art. 5-3). The
full text of the Commission's opinion is reproduced as an annex to
this judgment*.
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* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume 232-B
of Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
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AS TO THE LAW
11. On 6 February 1992 the Court received from the Ministry of
Foreign Affairs of the French Republic a document signed by Mr Birou
on 25 January 1992, which read as follows:
"I ... declare that I accept the friendly settlement proposed to me
by the French Government in the proceedings pending against that
Government in the European Court of Human Rights, subject to the
following condition:
- payment of compensation of 30,000 FF.
I acknowledge that the payment of the above-mentioned sum will
constitute full and final reparation for all the pecuniary and
non-pecuniary damage alleged by me in my application and will also
cover in their entirety the lawyer's fees and other costs incurred
by me in this case.
I therefore agree to withdraw from these proceedings and not to
institute any further proceedings in this matter against the French
State in the national or international courts.
I note that the French Government will take the measures necessary
to implement the terms of the friendly settlement as soon as the
Court has decided to strike the case out of the list.
..."
In a letter of 11 February 1992 to the Registrar, the applicant's
lawyer confirmed that his client and the Government had agreed a
settlement. The Delegate of the Commission was consulted and raised
no objection.
12. The Court takes formal note of the friendly settlement
reached by the Government and Mr Birou. It discerns no reason of
ordre public (public policy) why the case should not be struck out
of the list (Rule 49 paras. 2 and 4 of the Rules of Court).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the case out of the list.
Done in English and in French, and notified in writing under Rule 55
para. 2, second sub-paragraph, of the Rules of Court on
27 February 1992.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy