In the case of Kemmache 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 C. Russo,
Mr R. Bernhardt,
Mr S.K. Martens,
Mrs E. Palm,
Mr I. Foighel,
Mr R. Pekkanen,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 21 March and 22 October 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 41/1990/232/298 and 53/1990/244/315. The
first number in each of these two sets of numbers is the position
on the list of cases referred to the Court in the relevant year
(second number). The last two numbers in each set indicate the
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.
*** The amendments to the Rules of Court which came into force on
1 April 1989 are applicable to this case.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") in two stages, first
on 11 July and then on 12 October 1990, on each occasion 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 two
applications (nos. 12325/86 and 14992/89) against the French
Republic lodged with the Commission under Article 25 (art. 25) by
a French national, Mr Michel Kemmache, on 1 August 1986 and
28 April 1989; the Commission did not order the joinder of the two
applications.
2. The Commission's requests 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 requests was to obtain a decision as to whether
the facts of the case disclosed a breach by the respondent State of
its obligations under respectively Article 5 para. 3 and
Article 6 para. 1 (art. 5-3, art. 6-1) of the Convention,
specifically as regards the requirement of "reasonable time".
3. 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).
4. The Chamber to be constituted for the examination of the
first of the above-mentioned cases 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 27 August 1990,
in the presence of the Registrar, the President drew by lot the
names of the other seven members, namely Mr F. Gölcüklü,
Mr C. Russo, Mr R. Bernhardt, Mr S.K. Martens, Mrs E. Palm,
Mr I. Foighel and Mr R. Pekkanen (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43).
5. On 15 October 1990 Mr Ryssdal decided that this Chamber
should also hear the second case and that it should examine both
cases simultaneously (Rules 21 para. 6 and 37 para. 3).
On 25 October the Chamber ordered the joinder of the two cases
(Rule 37 para. 3 in fine).
6. 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"), the Delegate of the
Commission and the applicant's representative on the need for a
written procedure (Rule 37 para. 1). In accordance with the order
made in consequence, the Registrar received the memorials of the
applicant and the Government on 21 and 23 January 1991
respectively. On 11 February the applicant lodged a memorial in
reply which, with the President's leave, was added to the documents
before the Court (Rule 37 para. 1, second sub-paragraph). The
Government replied thereto on 14 March. In a letter of 28 February
the Secretary to the Commission informed the Registrar that the
Delegate would make his observations at the hearing.
7. Having consulted, through the Registrar, those who
would be appearing before the Court, the President had directed on
6 November 1990 that the oral proceedings should open on
19 March 1991 (Rule 38).
8. The hearing took place in public in the Human Rights
Building, Strasbourg, on the appointed day. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mrs E. Belliard, Deputy Director of Legal Agent,
Affairs, Ministry of Foreign Affairs,
Miss M. Picard, magistrat, seconded to the
Legal Affairs Directorate, Ministry of
Foreign Affairs,
Miss F. Travaillot, magistrat, seconded to
the Criminal Affairs and Pardons Directorate,
Ministry of Justice,
Mr P. Chambu, Human Rights Division,
Ministry of Foreign Affairs, Counsel;
(b) for the Commission
Mr J.-C. Soyer, Delegate;
(c) for the applicant
Mrs C. Méral, avocate, Counsel.
The Court heard addresses by Mrs Belliard for the Government,
by Mr Soyer for the Commission and by Mrs Méral for the applicant,
as well as their replies to its questions. The representatives of
the Government and the applicant produced various documents on the
occasion of the hearing and subsequently.
AS TO THE FACTS
9. Mr Michel Kemmache, a French national, is currently serving
an eleven year prison sentence. Previously he resided at Pantin
where he was employed as a receptionist of a hotel company. He had
at one time been the managing director of that company and, before
that, the director of several companies in which he owned shares:
these consisted of gambling clubs, hotels and restaurants. His
criminal record showed three convictions, including a term of five
years' imprisonment for aggravated theft.
I. The particular circumstances of the case
A. The proceedings
1. The investigation proceedings
(a) Investigation concerning the charges of importing counterfeit
money into French territory and the use and unlawful circulation
of counterfeit banknotes
10. On 6 July 1981 Mr Klaushofer, an Austrian national residing
in Liechtenstein, and Mr Ceccio, an Italian living in Switzerland,
were apprehended at Nice Airport as they were attempting to change
a counterfeit one hundred US dollar banknote at one of the
airport's banks. The two men were travelling in a car stolen in
the Netherlands bearing a false Portuguese registration number.
Their luggage was found to contain 4,500 counterfeit 100 US dollar
banknotes and slips for wads of double that amount; on 8 July 1981
the two men were charged with importing counterfeit money into
French territory and the use and unlawful circulation of
counterfeit banknotes; they were remanded in custody.
Inquiries led the investigators to the applicant and to a Spanish
national, Mr Hernandez, whom Mr Klaushofer and Mr Ceccio had
allegedly met in Monaco through the intermediary of an Italian,
Mr Caudullo, known for his criminal activities. Mr Kemmache was
accordingly charged on 16 February 1983 with the same offences as
the first two accused and in his turn remanded in custody (see
paragraph 25 below).
11. On 24 February 1984 Mr Ceccio told the investigating judge
that he had, on the instructions of his lawyer and in exchange for
a sum of money paid by the applicant, untruthfully stated that he
did not know the latter. The judge concerned summoned Mr Kemmache
- who had in the meantime been released subject to court
supervision (see paragraph 25 below) - in order to examine him on
13 March 1984, an interview which was postponed to 20 March 1984.
The applicant failed to appear on that date. One of his lawyers
made a declaration to the investigating judge to the effect that he
had received a telephone call from a person whose identity he could
not reveal informing him that a motorway accident had prevented
Mr Kemmache from appearing. However, a witness who was interviewed
on 23 March, Mr Fernandez, stated that he and the applicant had
arrived in Nice by road, without encountering any difficulties, in
the evening of 19 March and that his travelling companion had
indeed been in Nice the following day, until about 5 pm.
Whatever the truth of the matter, Mr Kemmache was again remanded in
custody on 22 March (see paragraph 26 below).
12. On 29 June 1984 the investigating judge made an order
closing the investigation of the main offence and forwarded the
file to the prosecuting authorities.
(b) Investigation concerning the charges of suborning a
witness and conspiracy to suborn a witness
13. As a result of Mr Ceccio's statements (see paragraph 11
above), a second judicial investigation of Mr Kemmache and two
other persons was opened on 18 June 1984, on charges of suborning
a witness and conspiracy to suborn a witness.
On 20 February 1986 the investigating judge, after having
questioned the applicant, charged him with conspiracy to suborn a
witness. On 2 October 1986 he made an order concluding the
investigation and sending the papers to the prosecuting
authorities.
2. The trial proceedings
(a) The proceedings concerning the main offence (l'affaire
criminelle)
14. On 28 August 1984 the indictments division (chambre
d'accusation) of the Aix-en-Provence Court of Appeal ordered
Mr Kemmache's indictment on charges of importing counterfeit money
into French territory and of use and unlawful circulation of
counterfeit banknotes and committed him for trial before the
Alpes-Maritimes Assize Court. The applicant appealed on points of
law and the Court of Cassation set aside this decision on
20 November 1984 on the ground that the indictments division had
disregarded Articles 83 and 84 of the Code of Criminal Procedure by
failing to find that the investigating judge who had replaced the
first investigating judge, the latter having changed posts, had not
been formally appointed.
15. The case was remitted to the indictments division of the
Grenoble Court of Appeal which, on 7 January 1985, committed the
applicant for trial in the Alpes-Maritimes Assize Court. The
applicant appealed on points of law and the Court of Cassation set
aside this decision on 26 March 1985 for failure to give sufficient
reasons.
16. The case was again remitted to the indictments division of
the Grenoble Court of Appeal which, sitting with a different panel
of judges, on 15 May 1985 committed Mr Kemmache for trial in the
Alpes-Maritimes Assize Court. However, on the applicant's appeal,
the Court of Cassation set aside the decision on 17 July 1985 on
the ground that the indictments division had infringed Article 202
of the Code of Criminal Procedure by relying on facts not included
in the investigating judge's referral order, without having called
for additional investigative measures or having had the applicant
charged.
17. The case was remitted to the indictments division of the
Lyon Court of Appeal, which on 13 August 1985 committed Mr Kemmache
for trial before the Alpes-Maritimes Assize Court, charged with the
offence (crime) of knowingly aiding and abetting the importation
and use on French territory of counterfeit foreign banknotes and
the related offence (délit) of unlawful circulation of such
counterfeit banknotes within the customs area. On 29 October 1985
the Court of Cassation dismissed the applicant's appeal against the
Court of Appeal's decision.
18. The case was set down for trial in the Alpes-Maritimes
Assize Court in the first quarter of 1986, but by an order of
11 March 1986 the Assize Court President postponed the trial to a
subsequent session as the applicant had been charged with the
offence (délit) of conspiracy to suborn a witness (see paragraph 13
above) and the two sets of proceedings were related.
19. On 19 November 1986 the French authorities temporarily
handed Mr Klaushofer and Mr Ceccio over to the Swiss authorities,
pursuant to section 8 of the Extradition of Aliens Act of
10 March 1927 (see paragraph 38 below), in connection with a murder
investigation in that country in which they were implicated.
Mr Klaushofer was brought back to France on 26 February 1990,
having been sentenced in Switzerland to twenty years' imprisonment;
Mr Ceccio had been returned on 25 January 1988 following a finding
that there was no case for him to answer.
20. On 12 June 1990 the Alpes-Maritimes Assize Court separated
the proceedings concerning the applicant and Mr Klaushofer from
those directed against Mr Ceccio, and postponed the former to a
subsequent session. It did so following an application to that
effect from Mr Klaushofer's counsel, which was supported by the
applicant's lawyers, as is clear from the following extract from
that decision:
"...
Mrs Boncompagni, counsel for the accused Stephan Klaushofer,
requests the adjournment of the case, principally on the
ground that, as she was appointed by the court on 8 June 1990,
she has not had sufficient time to study fully the file;
moreover, the accused has designated another lawyer,
Mr Vergès, to conduct his defence;
Mr Peyrat and Mrs Méral, counsel for the accused Michel
Kemmache, associate themselves with this application,
referring to the 'indivisibility of the accused's cases';
..."
21. When notified that the hearing would be held on 13 and
14 December 1990, and invited to report the day before to Nice
prison in order to be taken into custody, the applicant produced on
10 December a certificate attesting his entry into the specialised
hospital of Ville Evrard (Neuilly-sur-Marne) on 5 December,
following an assault of which he had been the victim in Nice a few
days previously. By an order of 13 December 1990 the President of
the Alpes-Maritimes Assize Court noted that Mr Kemmache had not
given himself up to be taken into custody despite the conclusions
of a medical report, drawn up at the request of the principal
public prosecutor and filed on 11 December, according to which his
psychological and mental state did not prevent him from appearing
normally in the Assize Court. In addition, he ordered the
separation of the proceedings against the applicant from those
concerning Mr Klaushofer, and postponed the case to a subsequent
session.
22. On 25 April 1991 the Alpes-Maritimes Assize Court sentenced
the applicant - who had been re-arrested on 14 March 1991 under the
arrest warrant issued by the Lyon Court of Appeal indictments
division on 13 August 1985 (see paragraph 17 above) - to eleven
years' imprisonment and a fine of 2,600,000 French francs. The
following day Mr Kemmache filed an appeal with the Court of
Cassation, which is still pending.
(b) The proceedings concerning the subornation offence (l'affaire
correctionnelle)
23. On 4 March 1987 the Nice investigating judge committed
Mr Kemmache and a co-accused for trial in the Nice Criminal Court
(tribunal correctionnel) on the charges of suborning a witness and
conspiring to suborn a witness.
On 20 October 1987 they were both acquitted.
B. The detention on remand
24. During the two above-mentioned sets of proceedings the
applicant remained in detention on remand for a total of more than
three years.
1. The first detention (16 February - 29 March 1983)
25. On the day on which he was charged with the main offence
(crime), 16 February 1983 (see paragraph 10 above), Mr Kemmache was
remanded in custody at Nice Prison. On 29 March 1983 he was
released subject to court supervision and the payment of a security
of 500,000 francs; the investigating judge had dismissed a first
application for release on 25 February 1983.
2. The second detention (22 March 1984 - 19 December 1986)
26. Pursuant to an arrest warrant of 22 March 1984, the
applicant was detained at the border of France and Monaco and
brought before the investigating judge of the Nice tribunal de
grande instance. The same day the latter again remanded him in
custody in Nice Prison and, on 26 March 1984, ordered that he
appear before him. The investigating judge took the view that
Mr Ceccio's revelations gave grounds for fearing that pressure
might be brought to bear on the witnesses (see paragraph 11 above)
and Mr Kemmache had failed to comply with the summons to appear on
20 March (ibid.).
27. The applicant then lodged numerous applications for his
release; he claimed that he was innocent, maintaining that no new
fact justified the issue of the second warrant, that there was no
danger of his absconding, that he had not sought to evade trial and
that his presence was necessary in charge of his business; he
offered to lodge, as an additional security, any sum fixed by the
courts.
In the memorials which he submitted at the hearings on 10 May 1984,
13 August 1985 and 28 October 1986, he stressed the reasons for his
failure to appear on 20 March 1984 (see paragraphs 11 and 26
above). In the first, he stated:
"[that] until 20 March 1984 he had complied with the
conditions of court supervision which had been imposed, that
on that date he [had] come to Nice where he [had] arrived on
18 March 1984 to obey the summons by the investigating judge,
who was to question him on 20 March at 3 p.m., that on
Monday 19 March, on his way to Miramas to visit the wife of
his associate, his car [had] broken down and this [had]
prevented him from attending the interview to which he had
been summoned."
In the second, he asserted that only "an unfortunate combination of
circumstances, which he had explained at length," had prevented him
from reporting to the investigating judge.
In the third, he affirmed as follows:
"Michel Kemmache acted entirely in good faith and that good
faith cannot be called in question in so far as ... he did
indeed intend reporting to the investigating judge.
He went to Nice as early as 18 March 1984, with a view to
attending an examination scheduled for 20 March 1984.
In this respect pursuant to the subpoena which was issued
on 11 April 1982, Mrs Evelyne Monod, the manager of the King
George Hotel at Nice, declared that Michel Kemmache had spent
two nights in her hotel, that, having arrived on
18 March 1984, he had left on 19 March 1984 in the afternoon.
It has also been established, by the attestation of
Mr Charles Kaiser, dated 17 July 1984, that Michel Kemmache
was to have visited him at home at Miramas on the evening of
19 March 1984 and to remain there until the morning of
20 March 1984.
As a result of mechanical problems affecting his motor
vehicle, he was prevented from returning to Nice on the date
and at the time fixed for the interview.
An attestation from the B.M.W. garage at Pavillon-sous-Bois,
the Bessin garage, establishes that Mr Michel Kemmache's car
had been kept for observation from 24 November 1983 to
10 February 1984, nearly three months, because the car had
already had mechanical problems.
However despite these mishaps Michel Kemmache went on the
following morning, the morning of 21 March, to the
investigating judge who chose to postpone the examination of
Michel Kemmache to a later date.
..."
28. The courts called upon to rule on these applications gave a
series of decisions dismissing them, stating as their reasons
essentially the lack of guarantees that the applicant would appear
for trial, in that he had already tried to evade the obligations of
court supervision, and the risk of pressure being brought to bear
on the witnesses, in the light of Mr Ceccio's revelations.
Decision of the indictments division of the Aix-en-Provence
Court of Appeal of 10 May 1984
"...
It appears that the results of the verifications effected to
determine how Kemmache spent the three days of 19, 20 and
21 March 1984, in particular the statements of Fernandez, who
was at his side for these three days, far from corroborating
the accused's explanations, contradict them, in particular as
regards the claim that he had undertaken a trip to Miramas in
the course of which an unexpected mechanical incident
occurred;
Ceccio's statements on the facts relating to the subornation
of which he accuses Kemmache are on the other hand
corroborated by various counterfoils of postal orders annexed
to the file and these facts are at least an indication of a
determination on the part of the accused to make every effort
to evade the sanctions which he is liable to incur given the
present state of the evidence against him resulting from the
investigation;
Having regard to this evidence, Kemmache risks a sentence
for a serious crime and his release would make it possible for
him to bring pressure to bear on witnesses, as he has already
tried to do in respect of Ceccio, and this is something of
which the investigating judge was unaware when he placed the
accused under court supervision, and to concert with third
parties with a view to impeding the establishment of the
truth;
It is also necessary to keep him in detention in order to
protect public order from the serious disturbance caused by
the offences in question, which were committed in the context
of an international traffic in counterfeit money, a feature of
organised crime;
In addition, Kemmache, who has previous convictions, in view
of the severity of the new sanction which he risks and the
latest developments as regards his conduct, would not seem to
be able to provide sufficient guarantees of his appearance for
trial and his detention now appears to be the only means of
ensuring with certainty that he will remain at the disposal of
the judicial authorities;
..."
Decision of the indictments division of the Aix-en-Provence
Court of Appeal of 24 July 1984
"...
The alleged offences are very serious since they consist of
a traffic in counterfeit money organised from a foreign
country;
...
In a memorial lodged at the registry on 10 July 1984 by his
lawyer, he argues that he has a permanent address, that he is
a businessman, that he has a family and is therefore capable
of providing all the guarantees that he will appear for trial;
...
Considerable evidence exists against the accused, who was
seriously implicated in the course of the investigation;
When placed under court supervision subject to the payment
of a security, he travelled without leave and without a valid
reason in order to deal with his business affairs in Paris;
He failed to comply with the summons of the investigating
judge, who had to have him re-arrested;
He is therefore not capable of providing sufficient
guarantees that he will appear for trial;
He may perfectly well not appear before the Assize Court,
the prospect of a sentence for serious crime being such as to
encourage him to flee;
His detention is necessary as a precautionary measure;
..."
Decision of the indictments division of the Aix-en-Provence
Court of Appeal of 7 August 1984
"...
He is however implicated in a major traffic in counterfeit
US dollars in which he is alleged to have played an important
role, considerable evidence exists against him and he cannot
provide guarantees that he will appear for trial;
..."
Decision of the indictments division of the Aix-en-Provence
Court of Appeal of 28 August 1984
"...
There is considerable evidence against the accused which
relates to serious offences such as are liable to disturb
public order, which must be maintained;
This evidence stems from the statements of a co-accused
Ceccio who formally implicated him, but also from other
testimony and his presence in a restaurant in Monaco with the
others involved in this case on the day on which delivery was
taken of the counterfeit banknotes;
Michel Kemmache has previous convictions and the guarantees
that he will appear for trial which he has proposed are
insufficient;
It is necessary to keep him in detention in order to ensure
that he will appear for trial;
His application for release must therefore be dismissed;
..."
Decision of the indictments division of the Aix-en-Provence
Court of Appeal of 9 October 1984
"...
There is considerable evidence against this accused, who on
that account risks a sentence for a major offence;
Kemmache's release would make it possible for him to bring
pressure to bear on the witnesses and to concert unlawfully
with third parties to impede the establishment of the truth,
as he has already done according to the statements of his co-
accused, Ceccio;
It is also necessary to keep him in detention in order to
protect public order from the grave disturbance caused by the
offence of participation in an international traffic in
counterfeit money, a feature of organised crime;
In addition, in view of his previous convictions and the
sanction he risks incurring, Kemmache, who when previously
under court supervision was finally apprehended on
22 March 1984 at the border of France and Monaco, cannot
provide sufficient guarantees that he will appear for trial
and his detention is necessary in order to ensure that he
remains at the disposal of the judicial authorities;
..."
Decision of the indictments division of the Aix-en-Provence
Court of Appeal of 13 November 1984
"...
Considerable evidence exists against this accused who
accordingly risks a sentence for a major offence;
Given that at this stage Kemmache denies any culpable
involvement in the alleged offences, his release would make it
possible for him to bring pressure to bear on the witnesses,
as he has already tried to do with his co-accused Ceccio, who
reported his attempts in this respect, and to concert
unlawfully with third parties in order to impede the
establishment of the truth;
It is also necessary to keep him in detention in order to
protect public order from the serious disturbance caused by
the alleged offence of participation in an international
traffic of counterfeit money, a feature of organised crime;
In addition, in view of his previous convictions and having
regard to the severity of the sentence which he risks,
Kemmache who, when placed under court supervision, was finally
apprehended on 22 March 1984 at the border of France and
Monaco, cannot provide sufficient guarantees that he will
appear for trial and his detention is necessary to ensure that
he remains at the disposal of the judicial authorities;
..."
Decisions of the indictments division of the Grenoble
Court of Appeal of 23 May and 18 June 1985
"...
Despite Michel Kemmache's denials, there is considerable
evidence of his guilt as noted in the decision of 15 May 1985
committing this accused for trial in the Alpes-Maritimes
Assize Court on charges of use on French and Monegasque
territory of counterfeit foreign money and ... unlawful
circulation of counterfeit banknotes within the customs area;
The seriousness of the offences resulted in a profound and
long lasting disturbance of public order; Michel Kemmache was
placed in detention the second time because he had failed to
comply with a summons by the investigating judge;
If he were to be released, there is a risk that he would
evade trial;
He could also, as he has already done in respect of Ceccio,
bring pressure to bear on witnesses;
The application for release filed by Michel Kemmache must
accordingly be dismissed;
..."
Decision of the indictments division of the Lyon
Court of Appeal of 13 August 1985
"...
The alleged offences in respect of which there are serious
and concurring indications of Kemmache's guilt are not as he
maintains harmless offences, but are particularly serious ones
which caused a considerable disturbance to public order;
While Kemmache does indeed have a fixed address, he has
already been convicted twice and sentenced to long terms of
imprisonment for theft;
The guarantees that he will appear for trial which he claims
to be reliable are all the more doubtful since he has already
had to be returned to detention after a period of freedom
because he failed to comply with the summons of the
investigating judge;
In these circumstances his application for release must be
dismissed both in order to keep at the disposal of the
judicial authorities an accused in respect of whom there are
serious indications of guilt and who cannot provide genuine
guarantees that he will appear for trial and with a view to
protecting public order from the disturbance caused by the
offence and to avoid its repetition;
..."
On 17 July and 3 September 1985 the Criminal Division of the Court
of Cassation quashed the two decisions of the indictments division
of the Grenoble Court of Appeal of 23 May and 18 June 1985 on the
ground that the composition of the indictments division had been
unlawful, but dismissed on 29 October 1985 an appeal against the
decision given in Lyon on 13 August 1985.
29. On 18 April 1986 the indictments division of the Lyon Court of
Appeal dismissed a further application, filed with it on 1 April
and based on Article 5 para. 3 (art. 5-3) of the Convention. It
found as follows:
"...
At this stage of the proceedings there [is] sufficient
evidence that the accused committed the alleged offences, in
other words that he was, irrespective of the subornation
charge, one of the organisers of a major traffic in
counterfeit dollars;
Such offences caused a disturbance to public order, an
important aspect of which is the confidence that individuals,
businessmen, bankers and any other persons must be able to
have in money, and only detention can protect against such
disturbance;
In view of the complexity of the facts, their particular
gravity and the heavy sentence risked, detention of two to
three years is not abnormal, regard being had to the last
appeals filed (in the Court of Cassation), which were
dismissed; thus the accused's right to be tried within a
reasonable time has not been infringed, in particular because
he appears not to be unconnected with the President of the
Assize Court's decision to adjourn the case;
...
In addition, in view of the heavy sentence risked, only
detention can ensure that this accused will appear for trial
and remove from him, as a person with two previous
convictions, the temptation to resort again to a life of crime
and to bring pressure to bear on the witnesses and the co-
accused, the announcement of whose forthcoming release is
perhaps premature;
It follows that, both to protect public order from the
disturbance caused by the traffic in counterfeit banknotes and
to prevent the repetition of the offence as well as to ensure
that the accused appears for trial and to avoid pressure being
brought to bear on the witnesses and the co-accused, detention
remains necessary;
..."
On 16 July 1986 the Criminal Division of the Court of Cassation
dismissed the applicant's appeal against this decision:
"In the light of these reasons and taking into account the
new fact on which the President of the Assize Court's decision
to adjourn the case in the interests of the proper
administration of justice was founded, the indictments
division could, irrespective of the fact that certain of the
grounds given were superfluous, consider, as it did, that the
accused's right to be tried within a reasonable time had not
been disregarded in this instance;
..."
30. Further decisions dismissing applications for release were
given subsequently:
Decision of the indictments division of the Lyon Court of Appeal of
5 September 1986
"...
As the indictments division already held on 18 April 1986,
in connection with an earlier, similar application, for
reasons which remain entirely valid, the decision committing
the accused for trial shows that there is sufficient evidence
that the accused, and only his personal situation is relevant
in this respect, did commit the offences in question, namely
that he was, irrespective of the subornation charge, one of
the organisers of a major traffic in counterfeit dollars;
Such offences caused a disturbance to public order, an
important aspect of which is the confidence that individuals,
businessmen, bankers and any other persons must be able to
have in money, and only detention can protect against such
disturbance;
In view of the complexity of the facts, their particular
gravity and the heavy sentence risked, detention of two or
three years is not abnormal, regard being had to the last
appeals filed (in the Court of Cassation), which were
dismissed; thus the accused's right to be tried within a
reasonable time has not been infringed, in particular because
he appears not to be unconnected with the President of the
Assize Court's decision to adjourn the case;
...
In addition, in view of the heavy sentence risked, only
detention can ensure that the accused will appear for trial
and remove from him, as a person with two previous
convictions, the temptation to resort again to a life of crime
and to bring pressure to bear on the witnesses and the co-
accused;
It follows that, both with a view to protecting public order
from the disturbance caused by the traffic in counterfeit
banknotes and to prevent the repetition of the offence as well
as to ensure that the accused appears for trial and to avoid
pressure being brought to bear on the witnesses and the co-
accused, detention remains necessary;
..."
Decision of the indictments division of the Lyon Court of Appeal of
20 September 1986
"...
It appears from the proceedings that there are on the facts
serious and concurring indications that Kemmache was one of
the organisers of a very major traffic in counterfeit 100 US
dollar banknotes, as Ceccio and Klaushofer's statements have
been corroborated by the concurring statements of Miss Busson,
of Brahim and others and by the facts ascertained and the
information obtained;
Such offences entailed for public order, an important aspect
of which is the confidence which individuals, bankers and
other persons must be able to have in money, a disturbance
which only detention can alleviate;
His criminal record (two convictions) gives rise to fears
that he might resume a life of crime;
In the light of the heavy sentence risked, the guarantees
that he will appear for trial are very far from being
sufficient;
Finally, if he were released, Kemmache could be tempted to
continue to bring pressure to bear on his co-accused and on
the witnesses;
Accordingly, in order to alleviate the disturbance caused to
public order by the offence and to ensure that the accused
does not, as he has done in the past, fail to answer
summonses, to avoid his resuming a life of crime and pressure
being brought to bear on the witnesses and his co-accused,
detention remains necessary;
..."
Decision of the indictments division of the Lyon Court of Appeal of
28 October 1986
"...
Although the detention has indeed been long, the nature and
the complexity of the case, the large number of appeals, and
the development of a related case of subornation explain the
delays in concluding the proceedings and in bringing the
accused before the trial court;
Having regard to all the evidence, it does not, however,
appear that the periods involved have been abnormal and that
the rights of the accused set out in the Convention referred
to have been disregarded;
With regard to the guarantees that he will appear for trial,
Kemmache relies on a fixed address where his wife states that
she is ready to welcome him and provides three attestations of
employers who say that they are ready to employ him;
He states that he was released on 29 March 1983 by the
investigating judge after his imprisonment on
16 February 1983, subject to court supervision, and then
reincarcerated on 22 March 1984 for not having complied with
the obligations imposed on him; he maintains that he cannot be
blamed for this conduct since a mistake as to the date, not
attributable to him, was at its origin;
The claims concerning guarantees made by Mr Kemmache appear
sincere even though the number of promises of immediate
employment is somewhat unusual at a time of widespread
unemployment;
However, in view of Kemmache's criminal record and the
severity of the sentence risked, it is to be feared that the
accused, who is known to have contacts abroad, will try to
evade trial;
Given the nature of the offence, a repetition is also to be
feared;
In those circumstances it is necessary to maintain the
accused at the disposal of the judicial authorities by
continuing his detention and dismiss the application for
release, which is not well-founded;
..."
On 9 October and 6 November 1986, the Alpes-Maritimes Assize Court
rejected two new applications for release in decisions setting out
identical reasons:
"...
Kemmache ... does not rely on any new submission in support
of his new application;
The offences of which Kemmache is accused are serious; he
risks a heavy sentence; he has already been convicted for
aggravated theft; it is to be feared that if he were released,
he would bring pressure to bear on the witnesses and seek to
evade trial;
It is necessary to keep him in detention in order to avoid
pressure being brought to bear on the witnesses and to ensure
that the accused remains at the disposal of the judicial
authorities;
..."
31. However, on 8 December 1986 it ordered Mr Kemmache's release,
subject to court supervision, for the following reasons:
"...
The investigation has been concluded and as certain of his
co-accused have been extradited to foreign countries, the case
cannot be heard before the assize court for some considerable
time;
It is appropriate in the circumstances, having regard to the
guarantees of his appearance for trial provided by Kemmache,
and in accordance with the submissions of the avocat général,
who has stated that he does not oppose the release requested,
to order Kemmache's provisional release, subject nevertheless
to court supervision and to the payment of a security which is
to be fixed at 300,000 francs;
..."
The applicant was released on 19 December.
32. On 7 and 20 July 1988 he applied to the indictments divisions
of the Lyon and Aix-en-Provence Courts of Appeal, respectively, for
the reimbursement of the securities of 500,000 and 300,000 francs
paid by him (see paragraphs 25 and 31 above). On 4 October 1988
the Alpes-Maritimes Assize Court ordered the repayment of the
securities and the complete lifting of the court supervision
conditions.
3. The third detention (11 June - 10 August 1990)
33. The applicant was summoned to appear on 12, 13 and
14 June 1990 in the Alpes-Maritimes Assize Court. On 11 June he
reported to be taken into custody pursuant to the relevant order.
By its decision adjourning the proceedings and severing the
proceedings against Mr Ceccio on 12 June 1990 (see paragraph 20
above), the Assize Court ordered that he be remanded in custody in
Nice prison.
34. The applicant unsuccessfully filed several applications for
his release, but finally, on 4 July 1990, the indictments division
of the Aix-en-Provence Court of Appeal allowed his release subject
to court supervision and the payment of a security of
800,000 francs, which it agreed, on 26 July, to divide into
eight instalments of 100,000 francs each.
The applicant challenged the decision of 4 July 1990, on the ground
that the indictments division had wrongly placed him under court
supervision; he relied, inter alia, on Article 5 paras. 1, 3 and 4
(art. 5-1, art. 5-3, art. 5-4) of the Convention and Article 6
paras. 1 and 2 (art. 6-1, art. 6-2). The Criminal Division of the
Court of Cassation dismissed the appeal on 22 November 1990.
35. Mr Kemmache paid a first instalment of 100,000 francs on
10 August 1990, then a second on 10 September. As his financial
circumstances made it impossible for him to meet the following
instalments, he reported on 10 September to the principal public
prosecutor at the Aix-en-Provence Court of Appeal, declaring that
he was ready to be taken into custody; he confirmed this to the
official in question by bailiff's letter on 10 October.
36. In the meantime he had twice applied for the lifting of the
court supervision in so far as it concerned the obligation to pay
a security. The indictments division dismissed his application on
8 August and 5 September 1990. He complained of these decisions to
the Court of Cassation on the basis, inter alia, of
Article 5 paras. 1, 3 and 4 (art. 5-1, art. 5-3, art. 5-4) of the
Convention together with Article 6 paras. 1 and 2 (art. 6-1,
art. 6-2); his appeals were dismissed on 22 November
and 20 December 1990.
II. The relevant legislation
A. Detention on remand
37. The provisions of the Code of Criminal Procedure concerning
detention on remand, as applicable at the material time, are as
follows:
Article 144
"In cases involving 'less serious' criminal offences
(matière correctionnelle), if the sentence risked is not less
than one year's imprisonment in cases of flagrante delicto, or
two years' imprisonment in other cases, and if the constraints
of court supervision are inadequate in regard to the functions
set out in Article 137, the detention on remand may be ordered
or continued:
1° Where the detention on remand of the accused is the sole
means of preserving evidence or material clues or of
preventing either pressure being brought to bear on the
witnesses or the victims, or collusion between the accused and
accomplices;
2° Where this detention is necessary to preserve public
order from the disturbance caused by the offence or to protect
the accused, to put an end to the offence or to prevent its
repetition or to ensure that the accused remains at the
disposal of the judicial authorities.
..."
(An Act of 6 July 1989 expressly provided that Article 144 was to
be applicable to the category of "major" criminal offences (matière
criminelle).)
Article 145
"In cases involving 'less serious' criminal offences, an
acused shall be placed in detention on remand by virtue of an
order which may be made at any stage of the investigation and
which must give specific reasons with reference to the
particular circumstances of the case in relation to the
provisions of Article 144; this order shall be notified orally
to the accused who shall receive a full copy of it; receipt
thereof shall be acknowledged by the accused's signature in
the file of the proceedings.
As regards 'major' criminal offences, detention is
prescribed by warrant, without a prior order.
...
The investigating judge shall give his decision in chambers,
after an adversarial hearing in the course of which he shall
hear the submissions of the public prosecutor, then the
observations of the accused and, if appropriate, of his
counsel.
..."
Article 148
"Whatever the classification of the offence, the accused or
his lawyer may lodge at any time with the investigating judge
an application for release, subject to the obligations laid
down in the preceding Article [namely: the undertaking of the
person concerned 'to appear whenever his presence is required
at the different stages of the procedure and to keep the
investigating judge informed as to all his movements'].
The investigating judge shall communicate the file
immediately to the public prosecutor for his submissions. He
shall at the same time, by whatever means, inform the party
seeking damages who may submit observations. ...
The investigating judge shall give his decision, by an order
setting out specific grounds under the conditions laid down in
Article 145-1, not later than five days following the
communication to the public prosecutor.
...
Where an order is made releasing the accused, it may be
accompanied by an order placing him under court supervision.
..."
B. Extradition of aliens
38. Section 8 of the Extradition of Aliens Act of 10 March 1927
provides as follows:
"Where an alien is prosecuted, or has been convicted, in
France and the French Government is requested to extradite him
in connection with a different offence, his extradition shall
be effected only after the prosecution is concluded, and, in
the event of his conviction, after the sentence has been
served.
However, this provision shall not preclude an alien being
sent temporarily to appear before the courts of the requesting
State, subject to the express condition that he is to be sent
back as soon as the foreign judicial authorities have given
judgment.
..."
PROCEEDINGS BEFORE THE COMMISSION
39. In his applications (nos. 12325/86 and 14992/89), which
were lodged with the Commission on 1 August 1986 and 28 April 1989,
Mr Kemmache alleged the violation of respectively:
- Article 5 para. 2 (art. 5-2) of the Convention, on the ground
that he had not been informed "promptly ... of the reasons for his
arrest and of [the] charge[s] against him"; Article 5 para. 3
(art. 5-3), in view of the length of his detention on remand; and
Article 6 para. 2 (art. 6-2) because the principle of the
presumption of innocence had been infringed;
- Article 6 para. 1 (art. 6-1) inasmuch as the main criminal
proceedings had exceeded a "reasonable time". He did not challenge
the length of the related subornation proceedings.
40. On 10 March 1989 the Commission declared inadmissible the
complaints based on Article 5 para. 2 (art. 5-2) (for failure to
exhaust domestic remedies) and Article 6 para. 2 (art. 6-2) (as
manifestly ill-founded); on the same day it declared the remainder
of the first application (i.e. the complaint under
Article 5 para. 3) (art. 5-3) admissible and then, on 7 June 1990,
it found the second application (Article 6 para. 1) (art. 6-1)
admissible in its entirety. In its reports of 8 June and
3 July 1990 (Article 31) (art. 31) , it expressed the opinion by
thirteen votes to three that there had been a violation of
Article 5 para. 3 (art. 5-3) and, unanimously, that there had been
a violation of Article 6 para. 1 (art. 6-1). The full text of the
Commission's opinion and of the dissenting opinion contained in the
report is reproduced as an annex to this judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume 218 of
Series A of the Publications of the Court), but a copy of the
Commission's report is available from the registry.
_______________
41. On 18 December 1990 and 11 April 1991, Mr Kemmache lodged two
further applications with the Commission (nos. 17621/91 and
18159/91); in the first he complained of his third detention (see
paragraphs 33-36 above); in the second he claimed that his rearrest
on 14 March 1991 had been arbitrary (see paragraph 22 above).
FINAL SUBMISSIONS TO THE COURT
42. At the hearing on 19 March 1991 the Agent of the Government
confirmed the submissions made in his memorials. In these
submissions he requested the Court to find that there had been no
breach of the requirements of Articles 5 para. 3 and 6 para. 1
(art. 5-3, art. 6-1).
The applicant's lawyer asked the Court to find an infringement of
the same provisions and to award his client the compensation
sought.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 PARA. 3 (art. 5-3)
43. Mr Kemmache relied on Article 5 para. 3 (art. 5-3), which is
worded as follows:
"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."
The Government considered the overall length of the deprivations of
liberty in question not to have been excessive, in the light of the
criteria laid down in the Court's case-law.
The Commission took the view that, at least from 29 June 1984 (see
paragraph 12 above), the applicant's detention was no longer based
on reasonable grounds.
A. Periods to be taken into consideration
44. The applicant underwent four periods of detention on remand:
from 16 February to 29 March 1983 (see paragraph 25 above), from
22 March 1984 to 19 December 1986 (see paragraphs 26-31 above),
from 11 June to 10 August 1990 (see paragraphs 33-35 above) and
from 14 March to 25 April 1991 (see paragraph 22 above).
Only the first two periods, which lasted a total of two years, ten
months and ten days, are to be taken into consideration in this
instance: the others were subsequent to 8 June 1990, the date on
which the Commission's report on the alleged violation of
Article 5 para. 3 (art. 5-3) was adopted, and are the subject of
new applications which are pending (see paragraph 41 above).
B. Reasonableness of the length of the two relevant periods of
detention
45. 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 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 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) (see, as
the most recent authority, the Letellier v. France judgment of
26 June 1991, Series A no. 207, p. 18, para. 35).
Where an arrest is based on reasonable suspicion that the person
concerned has committed an offence, persistence of that suspicion
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
cited 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 (ibid., p. 18, para. 35).
1. The first detention
46. The first detention began on 16 February 1983 and ended on the
following 29 March, after approximately six weeks. Mr Kemmache
maintained that it was not justified, pointing to, among other
things, the rapidity with which he was released.
In the Government's opinion, the investigating judge needed this
time to conduct, without fear of any pressure being brought to bear
or of unlawful collusion, the initial investigations and
confrontations at a decisive stage in the proceedings.
Furthermore, he agreed to release the applicant only subject to
court supervision and after the payment of a substantial security,
in view of the gravity of the alleged offences and the resulting
risk that the accused might abscond.
The Commission confined itself to observing that the applicant had
satisfied the conditions thus laid down.
47. In the Court's view, the nature of the offences to be
investigated and the requirements of the investigation could
justify the detention in question.
2. The second detention
48. The second detention to be taken into consideration lasted
from 22 March 1984 to 19 December 1986, nearly two years and nine
months.
In dismissing Mr Kemmache's applications for release, the relevant
courts cited four main grounds: the seriousness of the offences and
the severity of the sentence risked; the requirements of public
order; the need to prevent pressure being brought to bear on the
witnesses and the co-accused; and the necessity of preventing the
applicant from absconding.
(a) The seriousness of the offences and the severity of the
sentence risked
49. The Government stressed the seriousness of the offences which
Mr Kemmache was alleged to have committed and the severity of the
sentence which he risked: he had been committed for trial in the
Assize Court on charges of aiding and abetting the offence (crime)
of importing and uttering in France counterfeit banknotes, and of
aiding and abetting the related offence (délit) of unlawful
circulation of counterfeit banknotes; he risked life imprisonment.
According to the applicant, on the other hand, to take account of
these two factors was to violate the principle of the presumption
of innocence.
50. 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
alone cannot justify such a long period of pre-trial detention
(see paragraph 45 above).
(b) The requirements of public order
51. With the exception of the indictments division of the
Aix-en-Provence Court of Appeal in its decisions of 24 July and
7 August 1984 (see paragraph 28 above) and of the Alpes-Maritimes
Assize Court in its decisions of 9 October and 6 November 1986
(see paragraph 30 above), the courts before which the matter came
expressed forcefully, if in varying terms, the need to protect
public order from the disturbance caused by the offences of which
Mr Kemmache was accused.
The Government endorsed this reasoning, whilst the applicant
challenged it.
According to the Commission, the danger of such a disturbance,
which it understood to mean disturbance of public opinion following
the release of a suspect, cannot derive solely from the gravity of
a crime or of the charges pending against the person concerned.
52. The Court accepts that, by reason of their particular gravity
and public reaction to them, certain offences may give rise to a
social disturbance capable of justifying pre-trial detention, at
least for a time.
In exceptional circumstances, 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 disturbance of 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
disturb 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 the Letellier v. France judgment, cited above, Series A
no. 207, p. 21, para. 51).
In this case these conditions were not satisfied. Some of the
indictments divisions assessed the need to continue the deprivation
of liberty from a purely abstract point of view, taking into
consideration only the gravity of the offence (see, mutatis
mutandis, the same judgment, p. 21, para. 51). Others invoked "the
confidence which private individuals, businessmen, bankers and any
other persons must be able to have in money" (see paragraphs 29-30
above), thus confining themselves to noting the effects of the
alleged offences.
(c) The risk of pressure being brought to bear on the witnesses and
the co-accused
53. In the Government's contention, the new facts revealed by
Mr Ceccio justified the applicant's detention: they gave grounds
for fearing that pressure would be brought to bear on the witnesses
and the co-accused. He had been released as soon as this risk had
disappeared, in other words at the end of the criminal
investigation into the "less serious" offence (instruction
correctionnelle).
The applicant maintained that for three years he had been detained
in the same prison as his co-accused, Mr Klaushofer and Mr Ceccio.
In the Commission's view, the fear of collusion and suppression of
evidence was conceivable at the beginning of the investigation, but
once the witnesses had been questioned on numerous occasions, it
could no longer play a decisive role.
54. The Court notes that the detention order of 22 March 1984 was
issued in connection with the proceedings relating to the main
offence (procédure criminelle); no such order was made in the
context of the related proceedings in the subornation case
(procédure correctionnelle). It must be inferred from this that
after 29 June 1984 (see paragraph 12 above), the date on which the
investigation into the main offence was concluded by the
investigating judge, the risk in question disappeared and could no
longer serve as a justification for detention.
(d) The risk of the applicant's absconding
55. The Government considered that there was a danger of the
applicant's absconding. When released subject to court
supervision, Mr Kemmache had not complied with certain of his
obligations: he had twice, on 13 and 20 March 1984, without good
reason, failed to report to the investigating judge.
The applicant stressed that the hearing set down for 13 March had
been postponed to 20 March (see paragraph 11 above); he claimed
that the breakdown of his car had prevented him from going to the
court on that date. He added that a few hours later his lawyer had
telephoned in his presence to the investigating judge, who had said
that he intended to summon the applicant at a later date.
In the Commission's opinion, it could not automatically be assumed
that there was a risk of the applicant's absconding and the
decisions on this question gave insufficient reasons in so far as
they did not cite the slightest fact capable of establishing such
a risk.
56. The Court observes that in the memorials submitted in support
of three of his applications for release (see paragraph 27 above),
the applicant gave certain explanations concerning his failure to
appear on 20 March. The indictments division of the
Aix-en-Provence Court of Appeal noted however, in its decision of
10 May 1984:
"... the results of verifications effected to determine how
Kemmache spent the days of 19, 20 and 21 March 1984, in
particular the statements of Fernandez, who was at his side
for these three days, far from corroborating the accused's
explanations, contradict them, in particular as regards the
claim that he had undertaken a trip to Miramas in the course
of which an unexpected mechanical incident had occurred" (see
paragraph 28 above).
It appears from the documents produced that Mr Kemmache was indeed
in Nice on the day on which he was to appear before the
investigating judge and that his car had not had any mechanical
problems (see paragraph 11 above). The courts in question were
thus entitled to believe that there was a risk that he would evade
trial. However, they no longer relied on such a risk after
18 April 1986 so that, at least subsequent to that date, detention
was no longer justified on this account.
(e) Conclusion
57. These various considerations lead the Court to conclude that
the contested detention infringed Article 5 para. 3 (art. 5-3) in
so far as it lasted until 19 December 1986.
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1
58. In the applicant's submission, the duration of the criminal
proceedings (poursuites criminelles) instituted against him
exceeded a reasonable time within the meaning of Article 6 para. 1
(art. 6-1), according to which:
"In the determination ... of any criminal charge against
him, everyone is entitled to a ... hearing within a reasonable
time by [a] ... tribunal ..."
The Government contested this view, whereas the Commission accepted
it.
A. Period to be taken into consideration
59. The period to be taken into consideration began on
16 February 1983, the date on which Mr Kemmache was charged; it has
not yet ended, as the Court of Cassation has still to rule on the
latter's appeal against the Assize Court's decision of
25 April 1991 (see paragraphs 10 and 22 above). It has therefore
already lasted more than eight and a half years.
B. Reasonableness of the length of the proceedings
60. The reasonableness of the length of proceedings is to be
assessed in the light of the particular circumstances of the case,
regard being had to the criteria laid down in the Court's case-law,
in particular the complexity of the case, the applicant's conduct
and that of the competent authorities (see, among many other
authorities, the Manzoni v. Italy judgment of 19 February 1991,
Series A no. 195-B, p. 29, para. 17).
Each stage of the proceedings must be examined with reference to
these criteria.
1. The investigation (16 February 1983 - 29 June 1984)
61. The investigating judge concluded the investigation and
forwarded the file to the prosecuting authorities on 29 June 1984,
in other words sixteen months and two weeks after having charged
Mr Kemmache. Such a lapse of time cannot be regarded as excessive
in this instance. In any event, the applicant did not accuse the
judge in question of any lack of diligence.
2. The trial (after 29 June 1984)
(a) Complexity of the case
62. Before the Commission, the Government cited the complexity of
the case; they referred to the number of the perpetrators and
accomplices involved, the problem raised by the precise legal
classification of the offences and the opening of an investigation
on a count of subornation and conspiracy to suborn witnesses. They
did not revert to this point once the case had been brought before
the Court.
(b) Applicant's conduct
63. Nor did the Government reiterate the criticism which they had
levelled at Mr Kemmache for having filed numerous appeals in the
Court of Cassation; the Commission had regarded such criticism as
unfounded. They contended on the other hand that the applicant had
twice contributed to prolonging the proceedings: on 12 June 1990,
by associating himself with an application to adjourn the case to
a subsequent session and by objecting to the separation of his case
from that of Mr Klaushofer; on 12 December 1990, by not reporting
to be taken into custody the day before the trial.
On the first point, the applicant claimed that he had wished to
protect the rights of the defence of his co-accused; on the second,
he maintained that the assault of which he had been a victim had
left him mentally incapable of appearing at the hearing on
13 December 1990.
The Commission did not express a view on this question.
64. In the Court's opinion the judicial authorities cannot be held
responsible for the prolongation resulting from the adjournment
decided on 12 June 1990 on an application by Mr Klaushofer, with
the agreement of Mr Kemmache and entailing the separation of
Mr Ceccio's case (see paragraph 20 above). The applicant himself
caused an additional delay by not reporting to the prison on
12 December 1990, despite the fact that according to a medical
report his state of health did not prevent him from appearing at
the Assize Court (see paragraph 21 above).
(c) Conduct of the judicial authorities
65. In the Government's contention, the judicial authorities
cannot be criticised for any delay in the conduct of the case. The
length of the trial proceedings was due to two circumstances: the
existence of proceedings against Mr Kemmache for the subornation
offence (poursuites correctionnelles) and the temporary handing
over to Switzerland of the latter's co-accused.
i. The proceedings for the subornation offence (poursuites
correctionnelles)
66. The proceedings in question had led the President of the
Assize Court, on 11 March 1986, to adjourn to a subsequent session
the examination of the case relating to the main offence. Again
according to the Government, this decision was explained by the
close link between the two proceedings and corresponded to the
interests of the accused himself.
The applicant objected that the second set of proceedings had
plainly been intended to expand artificially the file in the first;
he pointed out in addition that the second set of proceedings had
resulted in an acquittal.
67. The Court considers that although the subornation proceedings,
which were themselves very long (18 June 1984 - 20 October 1987,
see paragraphs 13 and 23 above), had some effect on the course of
the main proceedings, contrary to the Government's claim that does
not justify the length of the latter proceedings.
ii. The handing over of the co-accused to Switzerland
68. The Government conceded that from 20 October 1987 the main
proceedings (affaire criminelle) were ready for trial. They
pointed out nevertheless that two of the applicant's co-accused,
Mr Klaushofer and Mr Ceccio, had provisionally been handed over to
the Swiss judicial authorities on 19 November 1986 in order to
facilitate the investigation of the murder, in Sicily, of a Swiss
national.
The measure in question, which was taken pursuant to section 8 of
the Extradition of Aliens Act of 10 March 1927 (see paragraph 38
above), was said to have been based on several grounds: the fact
that the trial in the main proceedings was not imminent, because it
depended on the course of the second set of proceedings, the
undertaking of the Swiss authorities to return the persons
concerned to the French judicial authorities promptly, and the
gravity of the offences investigated in Switzerland and the need
for speedy proceedings, whereas in France the main investigation
had been terminated and the risk that the evidence might disappear
had receded.
Mr Ceccio had been returned to Nice prison on 25 January 1988 after
a ruling in Switzerland on 24 December 1987 that there was no case
for him to answer; Mr Klaushofer did not return to Nice until
26 February 1990, after he had been sentenced by the courts in that
country to twenty years' imprisonment.
No doubt their absence would not, in theory, have prevented
bringing Mr Kemmache to trial earlier. In particular, if they were
unable to obtain Mr Klaushofer's return, the French judicial
authorities could have separated his case from that of Mr Kemmache
and Mr Ceccio. They decided against doing so because
Mr Klaushofer's statements constituted one of the fundamental
elements of the prosecution case and the persons concerned risked
a very heavy sentence.
On 23 June 1988, in reply to representations by the French
authorities, the Swiss authorities expressed their wish to postpone
sending Mr Klaushofer back because of developments in his trial.
By a despatch of 23 May 1989, the principal public prosecutor at
the Aix-en-Provence Court of Appeal informed the Minister of
Justice that the presence of the accused in France remained
necessary but "that in the interests of cooperation and mutual
assistance in regard to the Swiss authorities ... [he] [did] not
oppose the postponement of [Klaushofer's] return subject to the
proviso that he should be sent back no later than 1 January
[1990]". Mr Klaushofer was returned to France on 26 February 1990
and, according to the Government, the case was set down for hearing
at the next session of the Alpes-Maritimes Assize Court, on
12 June 1990.
In short, again according to the Government, the delay of two years
and eight months in bringing the case to trial stemmed directly
from the conduct of the Swiss authorities, who were themselves
bound by the requirements of their own proceedings.
69. The applicant maintained on the contrary that his co-accused
should not have been handed over to Switzerland until the end of
the proceedings and that the trial could have been opened before
19 November 1986. He argued in addition that his case should have
been separated from that of Mr Klaushofer.
70. Like the Commission, the Court is not convinced by the
argument that such a separation of the cases could not be
envisaged; it should also be noted that the Alpes-Maritimes Assize
Court adopted, on 12 June 1990, a measure of this nature in respect
of Mr Ceccio (see paragraph 20 above).
Examination of the case-file does not in fact disclose any
insurmountable obstacle which would have prevented the trial from
being held during one of the sessions of the first half of 1988, in
a case which had originated on 16 February 1983.
(d) Conclusion
71. Having regard to all the evidence, the Court considers that
the "reasonable time" prescribed by Article 6 para. 1 (art. 6-1)
was exceeded.
III. APPLICATION OF ARTICLE 50 (art. 50)
72. Under Article 50 (art. 50):
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
73. In respect of the violation of Article 5 para. 3 (art. 5-3),
Mr Kemmache sought 8,456,250 francs for psychological,
non-pecuniary and emotional damage and 1,200,000 francs for
financial, professional, pecuniary and social damage (loss of
earnings: 1,000,000 francs; security: 200,000 francs). He assessed
in addition at 1,000,000 francs the psychological, non-pecuniary
and pecuniary damage which he had allegedly sustained as a result
of the breach of Article 6 para. 1 (art. 6-1). He also claimed, in
respect of the two violations together, 250,000 francs for the
costs of the proceedings and various fees.
The Government contested these claims and expressed the view that
a mere finding of a violation would in any event provide sufficient
just satisfaction.
The Delegate of the Commission proposed that compensation should be
awarded in so far as the necessary causal connection existed, but
did not put forward any figure.
74. The Court takes the view that the question is not ready
for decision as the main criminal proceedings have not yet been
concluded. Accordingly, it should be reserved and the further
procedure fixed to take account of the possibility of an agreement
between the respondent State and the applicant (Rule 54 paras. 1
and 4 of the Rules of Court).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 5 para. 3 and
Article 6 para. 1 (art. 5-3, art. 6-1);
2. Holds that the question of the application of Article 50
(art. 50) is not ready for decision;
accordingly,
(a) reserves the whole of the said question;
(b) invites the Government and the applicant to submit to it in
writing, within three months of the conclusion of the relevant
criminal proceedings, their observations on the matter and in
particular to inform it of any agreement reached between them;
(c) reserves the further procedure and delegates to the President
of the Court the power to fix the same if need be.
Done in English and in French, and delivered at a
public hearing in the Human Rights Building, Strasbourg, on
27 November 1991.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy