PROCEDURE

The case originated in an application (no. 16428/05) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Fabrice Gardel (“the applicant”), on 30 April 2005.

The applicant, who had been granted legal aid, was represented by Mr P. Souchal, a lawyer practising in Nancy. The French Government (“the Government”) were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs, Ministry of Foreign Affairs.

The applicant complained, in particular, of his placement on the national register of sex offenders following his conviction. He relied on Article 7 of the Convention.

On 1 October 2007 the Court decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3 of the Convention).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1962 and is currently in prison in Montmédy.

Following a complaint lodged on 18 February 1997 by the parents of a young girl, S., the applicant was charged with the rape and sexual assault of a minor under 15 years of age by a person in a position of authority.

During the investigation he made several requests for additional investigative measures to be taken, which were refused by the investigating authorities.

On 15 April 2003 an investigating judge at the Bar-le-Duc tribunal de grande instance issued an order discontinuing the proceedings in respect of the sexual assault charges, as the limitation period had expired. The judge committed the applicant for trial on a charge of rape of a minor under the age of 15 by a person in a position of authority over the victim.

On 30 October 2003 the Meuse Assize Court sentenced the applicant to fifteen years’ imprisonment and stripped him of all his civil, civic and family rights for ten years.

The applicant did not appeal against that decision but lodged an application for a retrial, producing a number of documents which he claimed placed his guilt in doubt.

On 9 March 2004 Law no. 2004-204 established the national automated register of sex offenders (“the Sex Offenders Register”).

On 11 April 2005 the Criminal Cases Review Board rejected the applicant’s application for a retrial.

On 28 February 2005 the applicant applied to the Créteil Post‑sentencing Court to have his sentence suspended. On 17 June 2005 the application was refused on the grounds that, according to the expert medical reports, “the applicant’s survival is not in doubt, nor is his state of health incompatible in the long term with detention. Therefore, as matters stand, he does not meet the requirements of Article 720-1-1 of the Code of Criminal Procedure and is not eligible for the measure in question”. The court pointed out that the applicant’s sentence was due to run until 27 May 2019 and that his criminal record mentioned another conviction for sexual abuse of a minor under the age of 15 by a person in authority (a sentence of six years’ imprisonment and a judicial and social supervision order imposed by the Nancy Court of Appeal on 29 August 2002 for sexual assault of a minor). The court also took into consideration medical reports according to which the applicant suffered from congenital heart disease which made any physical activity impossible. The report advocated his placement under an enhanced prison regime with an individual cell, no exercise or physical activity, a salt-free diet and regular medication. The court also referred to a psychiatric expert report from November 2004 according to which the applicant’s psychological development “appears very limited in so far as he has failed to reflect on his own conduct. He has expressed no feelings of guilt or responsibility for the offences which he denies committing. A course of psychotherapy would help him develop more satisfactory relationships in the future with the people he comes into contact with”.

On 13 October 2005 the post-sentencing division of the Paris Court of Appeal upheld this judgment.

On 22 November 2005 the applicant was informed by a police officer from l’Haÿ-les-Roses police station that his name was being entered in the Sex Offenders Register on account of his conviction by the Meuse Assize Court, in accordance with the transitional provisions of the above‑mentioned Law of 9 March 2004. The official notification was worded as follows: “I, the undersigned, Mr Fabrice Gardel, hereby acknowledge that I have today been notified of my inclusion in the Sex Offenders Register on account of the [sentence] of imprisonment imposed on 30 October 2003 by the Meuse Assize Court, and that I am accordingly required, under Article 706-53-5 of the Code of Criminal Procedure, to:

provide proof of my address: ... Once a year either to the authority managing the register (the Ministry of Justice) ... or to my local police or gendarmerie station ..., during the month in which my birthday falls or during the month of January if my date of birth is not known or not established. ... I expressly acknowledge having been informed that: I have been finally convicted of an offence carrying a sentence of ten years or more. Accordingly, I am required to provide proof of my address by reporting in person every six months. ... I take note of the fact that if I leave the country my obligation to report in person will be suspended for the duration of my stay abroad but that I must continue to provide proof of my address by means of a registered letter with recorded delivery to the authority managing the Sex Offenders Register ... accompanied by documents certifying my address and signed by the local consular authority.

declare any change of address within fifteen days at the latest, in the same manner. I acknowledge having been informed: (i) that I must provide proof of my address for the first time within fifteen days of this notification, unless the latter is issued less than two months before the first day of the month of my birth, referred to above, or I am already required to provide proof of my address on an annual basis; (ii) that failure to comply with these obligations is punishable by a term of two years’ imprisonment and a fine of 30,000 euros; (iii) that any breach of these obligations will lead to an alert being issued to the judicial authorities and the police or gendarmerie which may result in my inclusion on the list of wanted persons and may be accompanied by a criminal prosecution; (iv) that, pursuant to Article R. 53-8-13, the proof of address and declaration of change of address provided for by Article 706-53-5 shall take the form of any document less than three months old in my name which gives proof of my home address, such as a bill or invoice; (v) that if the document produced refers to the address of another person, it must be accompanied by a statement written and signed by the latter confirming that I am staying at that address. I further acknowledge having been informed that I have the following rights: (i) under the Data Protection Act and Article 706-53-9, I may obtain a copy of all the information concerning me in the register by applying to the public prosecutor in whose district I am resident; (ii) if the decision forming the basis for my placement on the register was issued by a foreign judicial authority, I may apply to the public prosecutor at the Nantes tribunal de grande instance to have the information in the register rectified or deleted or to have the frequency of reporting reduced to once a year, in accordance with Articles R 53-8-27 et seq.”