The Committee of Ministers, under the terms of Article 54
(art. 54) of the Convention for the Protection of Human Rights
and Fundamental Freedoms (hereinafter referred to as "the
Convention"),
Having regard to the judgment of the European Court of Human
Rights in the Tomasi case against France delivered on
27 August 1992 and transmitted the same day to the Committee of
Ministers;
Recalling that the case originated in an application against
France lodged with the European Commission of Human Rights on
10 March 1987 under Article 25 (art. 25) of the Convention by
Mr Félix Tomasi, a French national, who claimed that during his
police custody he had suffered inhuman and degrading treatment
and who also criticised both the length of the proceedings he had
brought to challenge this treatment and the duration of his
detention on remand;
Recalling that the case was brought before the Court by the
Commission on 8 March 1991 and by the Government of France
on 13 May 1991;
Whereas in its judgment of 27 August 1992 the Court
unanimously:
- dismissed the Government's preliminary objection;
- held that there had been violations of Article 5,
paragraph 3, Article 3 and Article 6, paragraph 1 (art. 5-3,
art. 3, art. 6-1);
- held that the respondent state was to pay to the
applicant, within three months, 700 000 French francs for damage
and 300 000 French francs in respect of costs and expenses;
- dismissed the remainder of the claim for just
satisfaction;
Having regard to the Rules adopted by the Committee of
Ministers concerning the application of Article 54 (art. 54) of
the Convention;
Having invited the Government of France to inform it of the
measures which had been taken in consequence of the judgment of
27 August 1992, having regard to its obligation under Article 53
(art. 53) of the Convention to abide by it;
Whereas, during the examination of the case by the Committee
of Ministers, the Government of France gave the Committee
information about the measures taken in consequence of the
judgment, which information appears in the appendix to this
resolution;
Having satisfied itself that on 28 January 1993 the
Government of France paid the applicant the sums provided for in
the judgment of 27 August 1992,
Declares, after having taken note of the information
supplied by the Government of France, that it has exercised its
functions under Article 54 (art. 54) of the Convention in this
case.
Appendix to Resolution DH (94) 34
Information provided by the Government of France
during the examination of the Tomasi case
by the Committee of Ministers
In order to draw the attention of the courts to their
duties under Article 5, paragraph 3, and Article 6, paragraph 1
(art. 5-3, art. 6-1), of the Convention, the judgment of the
European Court of Human Rights has been published in the
information bulletin issued by the Court of Cassation. In
addition, Act 93-2 of 4 January 1993 (Article 102) has taken away
the privilege of jurisdiction which was an important reason for
the delays criticised under Article 6, paragraph 1 (art. 6-1).
The reforms of criminal procedure introduced by the
above-cited Act 93-2 and Act 93-1013 of 24 August 1994 have
furthermore increased the protection accorded to persons held in
police custody in order to prevent the repetition of the
violation of Article 3 (art. 3) of the Convention found in this
case. The main elements of the reform are the following:
1. The procedure in general
The first sub-paragraph of Article 63 of the Code of
Criminal Procedure states henceforth, no longer implicitly but
as a question of principle, that only an officer of the criminal
investigation police (police judiciaire) can place a person in
police custody.
The second sub-paragraph of Article 63, according to which
the detention of a simple witness can only last the time required
for the testimony to be taken, henceforth defines the persons who
may be considered as witnesses in a more restrictive way.
Lastly, the fourth sub-paragraph of Article 63 and the third
sub-paragraph of Article 77 clearly lay down in law the principle
that the fate of the persons vis-à-vis whom the nature of the
information gathered motivates proceedings - to be set free or
to be brought before a court - is to be decided by the public
prosecutor, and not by the criminal investigation police.
2. Information to be given to the public prosecutor or to
the investigation judge
The officer of the criminal investigation police shall as
soon as possible inform, as the case may be, the public
prosecutor or the investigation judge of the placement in
police custody.
3. The right to inform third parties
Every person kept in police custody has henceforth the right
to have a third party informed (a person with whom the detained
is usually living or a close relative or his employer) of the
detention (Article 63-2 of the Code).
4. The right to be examined by a doctor
Persons kept in police custody may henceforth be submitted
to a medical examination carried out by a doctor appointed by the
public prosecutor at their own request, or at that of their
families or the public prosecutor or the officer of the criminal
investigation police (Article 63-3 of the Code). In matters
governed by special regulations as far as medical surveillance
is concerned, namely in drug cases and in cases of detention of
minors under the age of 16, the intervention of a doctor is
compulsory.
5. Access to a lawyer
Article 63-4 of the Code henceforth provides that after
twenty hours the person held in custody may ask to be allowed to
speak for thirty minutes with a lawyer of his choice or appointed
by the Bâtonnier. The lawyer will not be allowed, for as long
as the custody is maintained, to reveal to anyone either the fact
that the meeting has taken place or the matters discussed. The
lawyer shall be informed before the meeting of the nature of the
crimes at issue in the investigation. This information is given
to the lawyer by the criminal investigation police. Those
responsible shall ensure that this new formality is mentioned in
the records.
The meeting with the lawyer shall only take place after
thirty-six hours of custody when the investigation involves facts
relating to certain specifically mentioned organised criminal
activities. The public prosecutor shall be informed as soon as
possible by the criminal investigation police if this exception
is applied. The public prosecutor must be put in such a
situation that he has strict control over the exercise of these
special provisions, inter alia as regards the qualification of
the facts held against the detained. The efficiency of this
control presupposes that the public prosecutor is informed before
the twenty-first hour of custody, that is to say, the time when
the lawyer shall normally intervene.
The lawyers involved are remunerated on conditions similar
to those applied in case of legal aid before the courts
(Article 47 of Act No. 93-1013).
Full & Egal Universal Law Academy