In the case of P.L. v. France (1),
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 Rules of Court A (2), as a Chamber composed of
the following judges:
Mr R. Bernhardt, President,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr B. Walsh,
Mr J. De Meyer,
Mr A.N. Loizou,
Sir John Freeland,
Mr D. Gotchev,
Mr B. Repik,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 20 March 1997,
Delivers the following judgment, which was adopted on that
date:
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Notes by the Registrar
1. The case is numbered 76/1996/695/887. 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.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 28 May 1996, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 21503/93) against the French Republic lodged with the Commission
under Article 25 (art. 25) by a French national, Mr P.L., on
20 July 1992. The applicant asked the Court not to reveal his
identity.
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. 1 of the Convention (art. 5-1).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant, who remained entitled
to legal aid for the representation of his case before the Court
(Rule 3 para. 1 of the Addendum to Rules of Court A), 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. Bernhardt, the Vice-President
of the Court (Rule 21 para. 4 (b)). On 10 June 1996, in the presence
of the Registrar, the President of the Court, Mr R. Ryssdal, drew by
lot the names of the other seven members, namely Mr F. Matscher,
Mr B. Walsh, Mr J. De Meyer, Mr A.N. Loizou, Sir John Freeland,
Mr D. Gotchev and Mr B. Repik (Article 43 in fine of the Convention and
Rule 21 para. 5) (art. 43).
4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the
French Government ("the Government"), the applicant's lawyer and the
Delegate of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received the Government's memorial on 31 October 1996.
On 3 December 1996 the Secretary to the Commission informed the Court
that the Delegate did not wish to reply to the Government's memorial
in writing. The applicant did not file any observations.
5. On 8 January 1997 the Commission produced various documents
requested by the Registrar on the President's instructions.
6. On 3 February 1997 the Agent of the Government informed the
Registrar that the applicant had been granted a pardon by the President
of the French Republic remitting part of his sentence. In his letter
he enclosed a copy of the letter he had sent on the same day to
Mr P.L.'s lawyer, in which he wrote:
"I have the honour to inform you that Mr [P.L.] has just been
granted a presidential pardon amounting to one year and
eighteen days, that is the equivalent of the initial period of
your client's detention on remand in connection with the
proceedings declared null and void in the judgment of the
Indictment Division of the Amiens Court of Appeal of
3 October 1989.
Consequently, in so far as the pardon thus granted to
Mr [P.L.] meets the object of his application to the
Convention institutions very precisely, a friendly settlement
of the case could be reached.
If so, the hearing in respect of the case in which you
represent the applicant, at present due to take place before
the ... Court ... on 19 March 1997, would be pointless.
If your agreement on a friendly settlement of the case is not
forthcoming, the French Government would be minded to request
the Court to strike the case out of its list, on the basis of
Rule 49 para. 2 of the Rules of Court.
..."
7. On 25 February 1997 the Agent of the Government wrote to the
Registrar in the following terms:
"As you know, Mr [P.L.] has just been granted a
presidential pardon for the exact equivalent of the initial
period of his detention on remand in connection with the
proceedings subsequently declared null and void.
That being the case, it seems to me that further consideration
of the case is not justified, since the pardon thus granted to
Mr [P.L.] meets the object of his application to the
Convention institutions.
I therefore have the honour to request the Court to strike the
case out of its list, pursuant to Rule 49 para. 2 of the
Rules of Court.
I can also confirm that I wrote to Mr [P.L.]'s lawyer on
3 February 1997 with a view to reaching a friendly settlement.
To date, I have still not received a reply from him in
writing."
8. On 26 February 1997 the Registrar sent copies of these
two letters to the applicant's lawyer and the Delegate of the
Commission and asked them to send him their views on the information
and the application to have the case struck out contained in them.
9. On 3 March 1997 the Secretary to the Commission wrote to the
Registrar in the following terms:
"...
... The Delegate of the Commission considers that it is for
the applicant to decide whether the presidential pardon which
he has been granted constitutes sufficient redress in the
present case. If so, having regard to the fact that in the
past the granting of a pardon has been the basis for
friendly settlements reached before the Commission, where the
latter took the view that the settlement thus reached was
based on respect for human rights, the Delegate would not
oppose the Government's application for the case to be struck
out of the list..."
10. On 5 March 1997 the President decided to adjourn sine die the
public hearing due to take place on 19 March 1997.
11. On 12 March 1997 the Agent of the Government sent the Registrar
a copy of a letter that had been sent by the Minister of Justice to the
Minister of Foreign Affairs on 11 March, informing him that the pardon
in question had been granted by the President of the Republic in the
form of a decree dated 27 January 1997.
12. On 14 March 1997 the Registrar received a letter from the
applicant's lawyer informing him that Mr P.L. "[was] not proceeding
with his application (se désist[ait] de sa demande)".
13. On 20 March 1997 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
14. On 9 July 1983 Mr P.L. married Mrs R.V., who had
three daughters from a previous marriage, Catherine, Cathy and Sophie,
born on 5 November 1971, 8 January 1973 and 31 January 1975
respectively.
15. In September 1988 Catherine, who was about twenty weeks'
pregnant, told the educational welfare officer attached to her school
that her stepfather had been abusing her for several years. This
information was passed on to the public prosecutor's office and a
preliminary investigation was undertaken by the gendarmerie. Catherine
stood by her allegations and Cathy and Sophie stated that the applicant
had also imposed sexual relations on them. Mr P.L. admitted the
offences involving the two elder children.
A. The judicial investigation
1. The first set of proceedings
16. On 16 September 1988 Mr P.L. was informed that he was under
judicial investigation on suspicion of a number of offences of rape of
a person under 15 by a person in a position of authority and rape by
a person in a position of authority, and remanded in custody.
17. On 18 September 1989 the public prosecutor's office asked the
Indictment Division of the Amiens Court of Appeal to declare null and
void the order appointing the investigating judge and all subsequent
decisions on the ground that the order did not bear the signature in
his own hand of the president of the Laon tribunal de grande instance,
but a stamp reproducing his signature.
In a judgment of 3 October 1989 the Indictment Division allowed
this application on the following grounds:
"...
A stamped signature cannot confer authenticity, which is
provided only by the original signature of the document in its
author's own hand; ...
It follows that all the decisions of [the investigating judge]
were taken by a judge not validly appointed, and are therefore
null and void;
..."
Mr P.L. was released on the same day.
2. The second set of proceedings
18. Another investigating judge had been appointed on
22 August 1989. On 5 December 1989 he informed the applicant that he
was under investigation on suspicion of a number of offences of rape
of a person under 15 by a person in a position of authority and rape
by a person in a position of authority, and remanded him in custody.
B. The trial
19. In a judgment of 18 October 1991 the Indictment Division of the
Amiens Court of Appeal committed Mr P.L. for trial at the
Aisne Assize Court.
On 25 March 1992 the Assize Court accepted that there were
mitigating circumstances in Mr P.L.'s favour and sentenced him to
seventeen years' imprisonment on a number of counts of aggravated rape.
C. The applications for reduction of sentence
20. Mr P.L. unsuccessfully requested the judge responsible for the
execution of sentences to deduct one year and eighteen days, that is
the equivalent of the time he had spent in prison during his initial
period of detention on remand, from his sentence.
He then wrote to the Laon public prosecutor, who replied on
19 May 1992 in the following terms:
"... I have the honour to repeat the explanations which have
already been given to you on many occasions, particularly by
the judge responsible for execution of sentences:
As the judicial investigation prior to 3 October 1989 was
declared null and void, your detention on remand from
16 September 1988 to 3 October 1989 is in law deemed never to
have taken place.
Consequently, that period, of which the Assize Court was aware
when it sentenced you, cannot be deducted from the sentence of
seventeen years' imprisonment imposed on you on 25 March 1992.
..."
21. The governor of Laon Prison, where the applicant was held,
alerted the management of the Prison Service at the Ministry of Justice
to the applicant's situation. The head of the Office for the
Individualisation of Prison Sentences replied in a memorandum of
14 November 1992:
"... The period of Mr P.L.'s detention on remand in connection
with the first judicial investigation cannot ... be taken into
account for the execution of his sentence since it took place
during proceedings which have been declared null and void and
for that reason are deemed never to have existed.
However, it remains open to Mr P.L. to petition the
President of the Republic for a pardon, seeking special
remission of part of his sentence, regard being had to his
legal position."
22. On 8 April 1994 the applicant petitioned the French President
for a pardon, seeking remission of part (one year and eighteen days)
of his sentence. This petition was dismissed on 28 February 1995 but
reconsidered and granted on 27 January 1997 (see paragraphs 6 and 11
above).
PROCEEDINGS BEFORE THE COMMISSION
23. Mr P.L. applied to the Commission on 20 July 1992. Without
relying on any specific provision of the Convention, he complained of
the fact that the term of imprisonment to which he had been sentenced
had not been reduced by the length of his initial period of detention
on remand in connection with a judicial investigation subsequently
declared null and void.
24. The Commission considered this complaint under Article 5
para. 1 and Article 14 of the Convention (art. 5-1, art. 14). On
16 October 1995 it declared the application (no. 21503/93) admissible.
In its report of 11 April 1996 (Article 31) (art. 31), it expressed the
opinion that there had been a violation of Article 5 para. 1 (art. 5-1)
(twenty-five votes to three) and that it was not necessary to consider
separately whether there had been a violation of Article 14 taken in
conjunction with Article 5 para. 1 (art. 14+5-1) (unanimously). 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 (1).
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Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1997-II), but a copy of the Commission's report is obtainable
from the registry.
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AS TO THE LAW
25. Rule 49 of Rules of Court A provides:
"...
2. When the Chamber is informed of a friendly settlement,
arrangement or other fact of a kind to provide a solution of
the matter, it may, after consulting, if necessary, the
Parties, the Delegates of the Commission and the applicant,
strike the case out of the list.
The same shall apply where the circumstances warrant the
conclusion that the applicant does not intend to pursue his
complaints or if, for any other reason, further examination of
the case is not justified.
...
4. The Chamber may, having regard to the responsibilities of
the Court under Article 19 of the Convention (art. 19), decide
that, notwithstanding the notice of discontinuance,
friendly settlement, arrangement or other fact referred to in
paragraphs 1 and 2 of this Rule, it should proceed with the
consideration of the case."
26. The Government informed the Court that, in a decree of
27 January 1997, the President of the French Republic had granted the
applicant a pardon remitting a portion of his sentence (one year and
eighteen days) equivalent to the period of detention on remand in issue
(see paragraphs 6, 11 and 22 above). They considered that the pardon
"[met] the object of [the] application to the Convention institutions
very precisely" and consequently requested that the case be struck out
of the Court's list (see paragraphs 6-7 and 11 above).
The Delegate of the Commission was consulted and stated that
it was for the applicant to say whether he considered that the
presidential pardon which he had been granted constituted sufficient
redress, and that if the applicant did so consider, he would not oppose
the application for the case to be struck out of the list
(see paragraph 9 above).
Subsequently, the applicant's lawyer informed the Registrar
that his client "[was] not proceeding with his application
(se désist[ait] de sa demande)" (see paragraph 12 above).
27. The Court observes that the Government and the applicant have
not reached a "friendly settlement" within the meaning of Rule 49
para. 2, but that the applicant has stated that he "is not proceeding
(se désiste)".
It further notes that the pardon granted in the decree of
27 January 1997 gave the applicant what he was seeking from the
French authorities. His imprisonment will be one year and
eighteen days shorter, just as if his first period of detention on
remand had been deducted from his sentence. Moreover, he was granted
legal aid before the Commission and the Court and has not made any
claim under Article 50 of the Convention (art. 50). That being so, the
circumstances described above may be regarded as an "arrangement or
other fact of a kind to provide a solution of the matter" within the
meaning of Rule 49 para. 2. Moreover, there is no reason of
public policy why the case should not be struck out of the list
(Rule 49 paras. 2 and 4). The case should therefore be struck out of
the list.
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 Rules of Court A on
2 April 1997.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar
Full & Egal Universal Law Academy