Resolution CM/ResDH(2010)49[1]
Execution of the judgment of the European Court of Human Rights
Faure against France
(Application No. 19421/04, judgment of 15 January 2009, final on 15 April 2009)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgment transmitted by the Court to the Committee once it had become final;
Recalling that the violation of the Convention found by the Court in this case concerns the breech of the right to liberty and security of the applicant whose arrest and detention were not effected according to a procedure prescribed by law (violation of Article 5, paragraph1) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2010)49
Information about the measures to comply with the judgment in the case of
Faure against France
Introductory case summary
This case concerns the violation of the applicant’s right to liberty and security, as his arrest and detention were effected not in accordance with a procedure prescribed by law (violation of Article 5§1).
The European Court found that the detention order, executed between the 15/05/2003 and the 29/10/2003, had been issued by the Aude Assize court, whereas at the time the Code of Criminal Procedure reserved the right to issue such detention orders only to the investigating courts. In the absence of relevant Cour de cassation case-law on this question, the European Court concluded that the Assize court’s decision to issue a detention order against the applicant was not based on a law which could be described as sufficiently accessible and precise to avoid any risk of an arbitrary decision.
I.Individual measures
The applicant’s detention ended on 29/10/2003 and he is currently in prison having being convicted on 29/10/2003.
Given the particular nature of the case, the European Court considered that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.
II.General measures
After the facts of this case, Law No. 2004-204 of 09/03/2004 created a new procedure called "le défaut criminel” (to replace proceedings in absentia) according to which the detention order disappeared and Assize courts were awarded the right to issue an arrest warrant, which now allows the detention of an accused. This change in the law should avoid further similar violations.
Moreover, the judgment has been published on the Legifrance website and sent out to all domestic courts via the website of the Department of European and International Affairs.
III.Conclusions of the respondent state
The government considers that the measures adopted will prevent further similar violations and that France has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 3 June 2010 at the 1086th meeting of the Ministers’ Deputies
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