Information Note on the Court’s case-law No.
August 1992
Tomasi v. France (preliminary objections) - 12850/87
Judgment 27.8.1992
Article 34
Victim
Length of detention on remand, treatment suffered during police custody and length of proceedings instituted in respect of such treatment: absence of victim status; preliminary objection allowed
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]
I.ARTICLE 5 § 3 OF THE CONVENTION
A.Government's preliminary objections
Court had jurisdiction to examine them, although the Commission maintained the contrary in regard to the first objection.
1.Failure to exhaust domestic remedies
Compensation awarded by the Compensation Board at the Court of Cassation: right to secure ending of deprivation of liberty to be distinguished from right to receive compensation for such deprivation - Article 149 of the Code of Criminal Procedure makes the award of compensation subject to fulfilment of specific conditions not required under Article 5 § 3 of the Convention - applicant had lodged application with the Commission after four years in detention.
Conclusion: dismissed (unanimously).
2.Loss of status of victim
Objection raised for the first time at the hearing, but memorial filed before the Compensation Board adopted its decision: not out of time, but open to the same objections as the plea that the applicant failed to exhaust domestic remedies.
Conclusion: dismissed (unanimously).
B.Merits of the complaint
Period to be taken into consideration: five years and seven months.
Reference to the principles laid down in the Court's case–law.
1.Grounds for continuing the detention
(a)Seriousness of alleged offences: existence and persistence of serious indications of guilt constituted relevant factors, but could not alone justify such a long period of pre-trial detention.
(b)Protection of public order: investigating judges and indictments divisions assessed need to continue deprivation of liberty from purely abstract point of view - however, attack in question was serious act of terrorism - risk of prejudice to public order at the beginning, but it must have disappeared after a certain time.
(c)Risk of pressure being brought to bear on the witnesses and of collusion between the co-accused: first risk existed from the outset, but gradually diminished, without, however, disappearing completely.
(d)Danger of applicant's absconding: decisions of the judicial investigating authorities contained scarcely any reason capable of explaining why they considered risk of applicant's absconding to be decisive and why they did not seek to counter it by, for instance, requiring lodging of security and placing him under court supervision.
(e)Recapitulation: some of the reasons for dismissing applications for release were both relevant and sufficient, but with the passing of time they became much less so.
2.Conduct of the proceedings
Evidence showed that in this case the courts did not act with necessary promptness - length of detention in question did not appear to be essentially attributable either to complexity of case or to applicant's conduct.
Conclusion: violation (unanimously).
II.ARTICLE 3 OF THE CONVENTION
A.Government's preliminary objection (failure to exhaust domestic remedies)
Action for damages in civil courts on basis of State's liability incurred through culpable conduct of its officials in performance of their duties: objection not raised before Commission, hence estoppel.
Conclusion: dismissed (unanimously).
B.Merits of the complaint
1.Causal connection between treatment complained of and injuries noted
Court based its view on several considerations: no one claimed that marks noted on applicant's body could have dated from a period prior to his being taken into custody or could have originated in an act carried out by applicant against himself or again as a result of an escape attempt - applicant had drawn attention to the marks on his body at his first appearance before investigating judge - four different doctors examined accused in days following the police custody and their certificates contained precise and concurring observations and indicated dates for occurrence of the injuries which corresponded to period spent in police custody.
2.Gravity of treatment complained of
Unnecessary to examine system of police custody in France and rules pertaining thereto, or, in this case, length and frequency of interrogations.
Sufficient to observe that the medical certificates and reports, drawn up in total independence, attested to large number of blows inflicted on the applicant and their intensity: two elements serious enough to render such treatment inhuman and degrading. Needs of inquiry and undeniable difficulties in fight against crime, particularly with regard to terrorism, cannot result in limits being placed on protection to be afforded to physical integrity of individuals.
Conclusion: violation (unanimously).
III.ARTICLE 6 § 1 OF THE CONVENTION
A.Government's preliminary objection (failure to exhaust domestic remedies)
Action for compensation pursuant to Article 781-1 of the Code of Judicial Organisation: submission out of time, because made at the hearing and not within the time-limits laid down in Rule 48 § 1 of the Rules of Court.
Conclusion: dismissed (unanimously).
B.Merits of the complaint
1.Applicability of Article 6 § 1
Right to compensation claimed by applicant depended on outcome of his complaint, lodged together with application to join the proceedings as a civil party, in other words on the conviction of the perpetrators of the alleged ill-treatment - was a civil right, notwithstanding the fact that criminal courts had jurisdiction.
2.Compliance with Article 6 § 1
(a)Period to be taken into consideration
Starting–point: date on which complaint was filed.
End: delivery of Court of Cassation's judgment.
Total: over five years and ten months.
(b)Reasonableness of the length of the proceedings
Case was not particularly complex - applicant hardly contributed to delaying outcome of the proceedings - responsibility for the delays observed lay essentially with judicial authorities.
Conclusion: violation (unanimously).
IV.ARTICLE 50 OF THE CONVENTION
A.Damage
Undeniable non-pecuniary and pecuniary damage - various relevant considerations taken into account, including Compensation Board's decision - compensation awarded.
B.Costs and expenses
Costs incurred in national courts and before Convention organs - amount to be reimbursed assessed on equitable basis.
Conclusion: respondent State to pay applicant specified sums (unanimously).
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This summary by the Registry does not bind the Court.
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