ITEMID: 001-57522
LANGUAGEISOCODE: ENG
RESPONDENT: BEL
BRANCH: CHAMBER
DATE: 1981
DOCNAME: CASE OF LE COMPTE, VAN LEUVEN AND DE MEYERE v. BELGIUM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 6-1;No violation of Art. 11;Just satisfaction reserved
TEXT: 8. Dr. Herman Le Compte, a Belgian national born in 1929 and resident at Knokke-Heist, is a medical practitioner.
9. On 28 October 1970, the West Flanders Provincial Council of the Ordre des médecins (Medical Association), which sits in Bruges, ordered that Dr. Le Compte’s right to practise medicine be suspended for six weeks. The ground was that he had given to a Belgian newspaper an interview considered by the Council to amount to publicity incompatible with the dignity and reputation of the profession. The applicant lodged an objection (opposition) against this decision, which had been given in absentia, but it was confirmed by the Provincial Council on 23 December 1970, the applicant again having failed to appear.
Dr. Le Compte thereupon referred the matter firstly to the Appeals Council of the Ordre des médecins, which, on 10 May 1971, held his appeal to be inadmissible, and secondly to the Court of Cassation, on 7 April 1972, the latter declared his appeal on a point of law inadmissible, on the ground that it had been filed without the assistance of a lawyer entitled to practise before that Court.
The order suspending Dr. Le Compte’s right to practise became effective on 20 May 1972 but he did not comply with it. For this reason, on 20 February 1973, the Furnes criminal court (tribunal correctionnel) sentenced him, pursuant to Article 31 of Royal Decree no. 79 of 10 November 1967 on the Ordre des médecins, to imprisonment and a fine.
This decision was confirmed on 12 September 1973 by the Ghent Court of Appeal; a appeal by Dr. Le Compte on a point of law was dismissed by the Court of Cassation on 25 June 1974.
10. Concurrently with the foregoing proceedings, which are not in issue in the present case (see paragraph 36 below), further proceedings were in progress. In fact, on 30 June 1971 the Provincial Council of the Ordre des médecins had, by a decision rendered in absentia, ordered another suspension, for three months, of the applicant’s right to practise: the Council stated that he had publicised in the press the above-mentioned decisions of the disciplinary organs of the Ordre and his criticisms of those organs, such conduct constituting contempt of the Ordre.
11. Dr. Le Compte had appealed to the Appeals Council of the Ordre which had confirmed this decision although without upholding the allegation of contempt. He had then referred the matter to the Court of Cassation, where he relied on the same grounds.
He contended in the first place that compulsory membership of the Ordre des médecins, without which no one may practise medicine and subjection to the jurisdiction of its disciplinary organs were contrary to the principle of freedom of association, which is guaranteed by Article 20 of the Belgian Constitution and Article 11 (art. 11) of the Convention.
The Court rejected this plea in the following terms:
"... compulsory entry on the register of an ordre which, like the Ordre des médecins, is a public-law institution having the function of ensuring the observance of the medical profession’s rules of professional conduct and the maintenance of the reputation, standards of discretion, probity and dignity of its members cannot be regarded as incompatible with freedom of association, as guaranteed by Article 20 of the Constitution; ... the appellant does not allege that the rule which he is challenging goes beyond the bounds of the restrictions authorised by Article 11 par. 2 (art. 11-2) of the Convention, for example for the protection of health."
The applicant also alleged a violation of Articles 92 and 94 of the Constitution: the first provides that the courts of law shall have exclusive jurisdiction to determine disputes over civil rights and the second prohibits the establishment of extraordinary tribunals for the purpose of resolving such disputes. He pointed out that the decision complained of had nonetheless been taken by a disciplinary organ, set up by Royal Decree no. 79, and that it had given a ruling on a civil right, namely the right to practise medicine.
The Court of Cassation replied that "disciplinary proceedings and the imposition of disciplinary sanctions are, in principle, unrelated to the disputes over which exclusive jurisdiction is reserved to the courts of law by Article 92 of the Constitution". The Court added that, since the Councils of the Ordre des médecins did not have jurisdiction to determine such disputes, "they are not extraordinary tribunals whose establishment is prohibited by Article 94". Finally, the Court observed that section 1 par. 8 (a) of the Act of 31 March 1967 (see paragraph 20 below) empowered the Crown "to reform and adapt the legislation governing the practice of the various branches of medicine" and that "the legislature was referring, inter alia, to the Act of 25 July 1938 establishing the Ordre des médecins, which Act conferred disciplinary powers on the Councils of the Ordre".
Lastly, Dr. Le Compte alleged that there had been a violation of Article 6 par. 1 (art. 6-1) of the Convention. He argued that the decision complained of had been given without any public inquiry and by a tribunal composed of medical practitioners, which could not be regarded as impartial since the kind of conduct of which he was accused might harm his colleagues.
The Court of Cassation confined itself to pointing out that Article 6 par. 1 (art. 6-1) did not apply to disciplinary proceedings.
Accordingly, by judgment of 3 May 1974, the appeal was dismissed.
12. Dr. Le Compte did not comply with the order suspending his right to practise medicine, which became final following the Court of Cassation’s judgment. On that account he was sentenced by the Bruges criminal court on 16 September and 15 October 1974 to terms of imprisonment and fines. He lodged an appeal against the first decision and an objection against the second, which had been rendered in absentia.
13. Since that time, a number of further proceedings have been instituted, both disciplinary, for the publicity given by the applicant to his dispute with the Ordre, and criminal, for his refusal to comply with the measures imposed by its Councils.
One of the disciplinary proceedings resulted in Dr. Le Compte’s being struck off the register of the Ordre with effect from 26 December 1975. In this connection he lodged a further application (no. 7496/76) with the Commission on 6 May 1976; that application, which the Commission declared admissible on 4 December 1979, is not relevant for the examination of the present case.
The criminal proceedings, at first instance, led to prison sentences and to fines.
14. Dr. Frans Van Leuven and Dr. Marc De Meyere are medical practitioners, born in 1931 and 1940, respectively. Both of them reside at Merelbeke and are Belgian nationals.
15. On 20 January 1973, thirteen medical practitioners practising in and around Merelbeke filed a complaint to the effect that these two applicants had committed breaches of the rules of professional conduct; it was alleged, in particular, that they had systematically limited their fees to the amounts reimbursed by the Social Security, even when on emergency duty, and had distributed without charge to private houses a fortnightly magazine called Gezond in which general practitioners were held up to ridicule. On 14 March 1973, the applicants were heard by the Bureau of the Provincial Council of the Ordre. They admitted that they had limited the fees charged to their own clients but not the fees charged when they were on emergency duty. In addition, they pointed out that they were not the publishers of Gezond and they denied that they had lampooned their colleagues in its pages.
16. On 19 March 1973, another medical practitioner lodged a further complaint against the applicants; he alleged that, two days after their appearance before the Bureau of the Provincial Council, they had put up in the waiting rooms of the Merelbeke medical centre a notice informing the public of the first complaint and the reasons therefore. On 23 May 1973, the Bureau of the Provincial Council heard the applicants in connection with the second complaint. They declared that they were entitled to provide the public with information about the situation, especially as it was already a matter of common knowledge.
17. The East Flanders Provincial Council of the Ordre des médecins, which sits in Ghent, summoned Dr. Van Leuven and Dr. De Meyere to answer several allegations.
On 24 October 1973, it directed that their right to practise medicine be suspended for a period of one month for having charged fees limited to the amounts reimbursed by the Social Security, for having contributed to the magazine Gezond and for having made therein public utterances judged offensive to their colleagues. In addition, Dr. Van Leuven was reprimanded for his behaviour when appearing before the Bureau of the Provincial Council on 14 March 1973. These various decisions were based on Articles 6 par. 2 and 16 of Royal Decree no. 79.
The Provincial Council considered, on the other hand, that the posting in the waiting rooms of the medical centre of a notice judged contrary to the rules of professional conduct did not warrant a disciplinary sanction, bearing in mind that the notice had been removed following a request from the Bureau.
18. The applicants appealed to the Appeals Council.
On 24 June 1974, the latter declared the appeal admissible and upheld the Provincial Council’s decision insofar as it had found established the allegations relating to the charging of fees limited to the amounts reimbursed by the Social Security and the contribution to the magazine Gezond. For the rest, the Appeals Council set aside the decision challenged and, after taking into account the complaint regarding the notice in the waiting rooms and joining it with the two other complaints, directed that the right of Dr. Van Leuven and Dr. De Meyere to practise medicine be suspended for a period of fifteen days.
19. On 25 April 1975, the Court of Cassation ruled against the applicants, who had appealed on a point of law.
The Court rejected the ground of appeal based on breach of Article 11 (art. 11) of the Convention; it considered that the functions of the Ordre des médecins "are by no means unrelated to the protection of health and that compulsory entry ... on the register of an Ordre of this kind does not exceed the restrictions on freedom of association which are necessary for the protection of health".
The Court in addition declared inadmissible, for want of legal interest, the ground of appeal to the effect that the limitation of fees to the amounts reimbursed by the Social Security was in conformity with both the law and the rules of professional conduct for medical practitioners; the Court found that the suspension had in fact also been imposed as a sanction for other disciplinary offences.
20. The ordre des médecins, which was established by an Act of 25 July 1938, was re-organised by Royal Decree no. 79 of 10 November 1967. This Decree was made under the Act of 31 March 1967 "investing the King with certain powers with a view to ensuring economic revival, acceleration of regional reconversion and a stable, balanced budget". The Act enabled the Crown, acting by Decrees in Council, to take "all appropriate steps ... to further the quality and ensure satisfactory provision of health care through reform and adaptation of the legislation governing the practice of the various branches of medicine" (section 1 par. 8 (a)); it specified that such Decrees could "repeal supplement, amend or replace existing legal provisions" (section 3).
21. Article 2 of Royal Decree no. 79 provides that "the Ordre des médecins shall include all physicians, surgeons and obstetricians who are permanently resident in Belgium and entered on the register of the Ordre for the Province where they have their permanent residence" and that "in order to practise medicine in Belgium, every medical practitioner" - whether Belgian or foreign - "must be entered on the register of the Ordre".
Military doctors, however, are only obliged to be entered on the register if they practise outside their military duties.
22. Alongside the Ordre des médecins, there exist in Belgium private associations formed to protect the professional interests of medical practitioners. The most important of these associations are consulted and invited to take part in collective negotiations when the Government are considering the adoption of decisions affecting those interests, to propose candidates for nomination as members of certain organs and to appoint their representatives on others, and to take various measures themselves.
23. The Ordre des médecins "shall enjoy civil personality in public law" (Article 1, third paragraph, of Royal Decree no. 79). It comprises three kinds of organs, namely Provincial Councils, Appeals Councils and the National Council.
24. The Provincial Councils (of which there are ten) consist of a number, which is always even and is fixed by the Crown, of members and substitute members who are medical practitioners of Belgian nationality elected for six years by doctors entered on the register of the Ordre. There are also an assessor and a substitute assessor who are judges of first instance courts appointed for six years by the Crown; the assessor has a consultative status (Articles 5 and 8 par. 1 of Royal Decree no. 79).
The Council’s functions are defined by Article 6 of Royal Decree no. 79 in the following terms:
"1o to keep the register of the Ordre. They may refuse or defer entry on the register if the person applying has been guilty either of an act of such seriousness as would cause the name of a member of the Ordre to be struck off the register or of serious misconduct damaging the reputation or dignity of the profession.
If the medical commission ... has decided and notified the Ordre that a medical practitioner no longer fulfils the conditions required for practising medicine or that it is necessary, for reasons of physical or mental disability, to place a restriction on the practise by him of medicine, the relevant Provincial Council shall, in the first case, remove the practitioner’s name from the register and, in the second case, make the maintenance of his name thereon subject to observance of the restriction ordered.
A practitioner’s name may also be removed from the register at his own request.
Reasons must be given for any decision refusing or deferring entry on the register, removing a practitioner’s name therefrom or making its maintenance thereon subject to restrictive conditions;
2o to ensure observance of the rules of professional conduct for medical practitioners and the upholding of the reputation, standards of discretion, probity and dignity of the members of the Ordre. They shall to this end be responsible for disciplining misconduct committed by their registered members in or in connection with the practice of the profession and serious misconduct committed outside the realm of professional activity, whenever such misconduct is liable to damage the reputation or dignity of the profession;
3o to give, of their own motion or on request, the members of the Ordre advice on matters of professional conduct ...; such advice shall be submitted to the National Council for approval ...;
4o to notify the relevant authorities of any acts involving illegal practice of medicine of which the Councils have knowledge;
5o to act, at the joint request of those concerned, as final arbitrator in disputes regarding the fees claimed by a medical practitioner from his client ...;
6o to reply to all requests for advice emanating from courts of law in connection with disputes as to fees;
7o to settle the annual subscription ... including the amount fixed by the National Council for each registered member."
25. The Provincial councils are distinct from the medical commissions which have been set up, outside the Ordre, in each Province and are composed in addition to medical and pharmaceutical practitioners of members of the paramedical professions and of officials of the Ministry of Public Health (Article 36 of Royal Decree no. 78). These commissions have two functions. The first is general and consists of "proposing to the authorities any measures designed to make a contribution to public health" and of "ensuring that practitioners ... (and) members of the paramedical professions collaborate effectively in the implementation of the measures laid down by the authorities for the purpose of preventing or combating diseases subject to quarantine or communicable diseases". The second, specific function comprises various responsibilities: "checking and ... approving practitioners’ diplomas"; "withdrawing approval or making its continuance in force subject to the acceptance by the person concerned of (certain) restrictions"; "ensuring that the practice of medicine (is conducted) in accordance with the laws and regulations"; "detecting and ... reporting to the prosecuting authority cases of illegal practice"; assessing the demand for emergency services and supervising their operation; "informing interested parties, whether acting in public or private capacity, of decisions taken" as regards a practitioner’s exercise of his profession; "advising the organs of the Ordres concerned of allegations of professional misconduct against practitioners"; "supervising public sales where medicines are involved" (Article 37).
26. The two Appeals Councils - one of which uses the French and the other the Dutch language - have their seat "in the Greater Brussels area". They are each composed of ten medical practitioners of Belgian nationality (five members and five substitute members) elected for six years by the Provincial Councils from among persons other than their own members, and ten Court of Appeal judges (five members and five substitute members) appointed by the Crown for the same length of time. From among these judges, the Crown designates the Chairman, who has a casting vote, and the member who is to act as rapporteur (Article 12 par. 1 and 2 of Royal Decree no. 79).
The Appeals Councils hear appeals from decisions given by the Provincial Councils on matters of registration or discipline. They deal, as the body of first and final instance, with claims concerning the regularity of elections to the Provincial Councils, the Appeals Councils and the National Council. They also decide cases on which the Provincial Councils have not given a ruling within the prescribed time-limit. Finally, they settle any dispute between Provincial Councils regarding a practitioner’s place of permanent residence (Article 13).
27. The National Council comprises twenty persons (ten members and ten substitute members) of Belgian nationality who are respectively elected by each of the Provincial Councils from among medical practitioners entered on its register, and twelve persons (six members and six substitute members) appointed by the Crown from among medical practitioners nominated in lists of three candidates by the medical faculties in the country. The National Council is presided over by a judge of the Court of Cassation chosen by the Crown and consists of two sections - one French-speaking, the other Dutch-speaking - each of which elects from among its number a Vice-President (Article 14).
The National Council formulates "those general principles and those rules concerning the morality, reputation, standards of discretion, probity and devotion to duty essential for practice of the profession which constitute the code of professional conduct for medical practitioners"; these principles and rules may be made compulsory by Royal Decrees in Council (a draft code failed to receive Royal approval). It keeps up to date a list of those disciplinary decisions given by the Provincial and Appeals Councils which are no longer open to appeal. It gives reasoned opinions "on general matters, on problems of principle and on the rules of professional conduct". It settles the amount of the subscription medical practitioners are asked to pay to the Ordre. More generally, it takes "all steps necessary for the achievement of the aims of the Ordre" (Article 15).
28. In the procedure relating to disciplinary and registration matters, which is primarily governed by the Royal Decree of 6 February 1970 "regulating the organisation and working of the Councils of the Ordre des médecins", the contending parties are always heard. There may be three stages: a ruling at first instance by the Provincial Council, a ruling at final instance by the Appeals Council and a review by the Court of Cassation of the legality of the decisions and the observance of formal requirements.
29. The procedure begins before the Provincial Council which "acts either on its own initiative, or at the request of the National Council, the Minister responsible for public health, the procureur du Roi or the medical commission, or on complaint by a medical practitioner or a third party" (Article 20 par. 1, first sub-paragraph, of Royal Decree no. 79). The procedure continues before the Appeals Council if it has been seised either by the practitioner concerned, or by the Provincial Council’s assessor, or by the President of the National Council acting jointly with one of the Vice-Presidents; an appeal has suspensive effect (Article 21).
30. Investigation of the matter necessarily involves the participation of a member of the judiciary: before the Provincial Council, for the purposes of the initial investigation, this will be the assessor; before the Appeals Council, for the purposes, if need be, of a supplementary investigation, it will be the Council member acting as rapporteur (see paragraphs 24 and 26 above). Furthermore, the Provincial Council member who acted as rapporteur may always be heard by the Appeals Council (Articles 7 par. 1, 12 par. 2 and 20 of Royal Decree no. 79).
31. Before the Provincial and Appeals Councils, the proceedings are conducted in private (Article 24 par. 1, sub-paragraph 3, of Royal Decree no. 79 and Article 19 of the Royal Decree of 6 February 1970). The medical practitioner concerned has the right to be informed as soon as possible of the opening of an inquiry against him (Article 24 of the Royal Decree of 6 February 1970); the procedure further provides for time-limits and formalities allowing him to have adequate time and facilities for the preparation of his defence (Articles 25 and 31); in addition, it contains guarantees concerning the use of languages (Articles 36 to 39).
The practitioner is also entitled to challenge the members of the organ hearing his case; he appears in person and may be assisted by one or more counsel who, like himself, may inspect the case-file (Articles 26, 31 and 40 to 43).
32. The Provincial and Appeals Councils are bound to deliver their ruling within a reasonable time, to preserve the secrecy of their deliberations and to give reasons for their decision. The person concerned must be promptly informed of the decision and of any appeal which may have been entered. Decisions are taken by simple majority. However, a two-thirds majority is required for striking a practitioner off the register of the Ordre or for his suspension for more than a year. The same rule applies to Appeals Council decisions ordering a sanction where the Provincial Council has imposed none or increasing the severity of the sanction imposed by the Provincial Council (Article 25 in fine of Royal Decree no. 79, Articles 4, 12, 26, 32 and 33 of the Royal Decree of 6 February 1970). The sanctions which may be imposed by the Provincial Councils - and also, if appropriate, the Appeals Councils - are "warning, censure, reprimand, suspension of the right to practise medicine for a period not exceeding two years and striking off the register of the Ordre" (Article 16 of Royal Decree no. 79).
33. Under Article 23 of Royal Decree no. 79, "final decisions of the Provincial Councils or the Appeals Councils may be referred to the Court of Cassation either by the Minister responsible for public health, or by the President of the National Council acting jointly with one of the Vice-Presidents, or by the practitioner concerned, on the ground of contravention of the law" - the latter term being understood in a wide sense - "or of non-observance of a formal requirement which is either a matter of substance or laid down on pain of nullity". The Court will have before it the complete case-file (decisions at first instance and on appeal, memorials and final submissions of the parties, including a detailed statement of the facts); however, it cannot verify the findings of fact made by the Councils of the Ordre, unless it is alleged that there has been a breach of the rules of evidence. The Court does not have jurisdiction to rectify factual errors on the part of the Appeals Councils or to examine whether the sanction is proportionate to the fault.
An appeal to the Court of Cassation on a point of law has suspensive effect.
34. Decisions in a disciplinary matter which have become final are notified to the Minister of Public Health; the most important ones (striking off the register of the Ordre or suspension of the right to practise) are also notified to the medical commission and to the procureur général attached to the Court of Appeal (Article 27 of Royal Decree no. 79 and Article 35 of the Royal Decree of 6 February 1970).
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 11


ITEMID: 001-75900
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF VAYIC v. TURKEY
IMPORTANCE: 1
CONCLUSION: Violation of Art. 5-3;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
TEXT: 4. The applicant was born in 1963 and lived in Istanbul at the material time.
5. On 9 September 1996 he was taken into police custody by police officers from the Anti-Terrorist Branch of the Istanbul Security Headquarters on suspicion of being a member of an illegal organisation. On 18 September 1996 a judge at the Istanbul State Security Court ordered the applicant’s detention pending trial.
6. On 13 March 1997 the public prosecutor attached to the Istanbul State Security Court filed a bill of indictment charging the applicant and sixteen others with membership of an illegal organisation, under section 5 of the Prevention of Terrorism Act and Article 168 § 2 of the Criminal Code.
7. The first hearing was held on 21 May 1997.
8. On 11 March 1998 the defendants’ representatives informed the court that criminal proceedings had been instituted in the Istanbul Assize Court against police officers who had allegedly ill-treated the defendants while they were in detention. The State Security Court requested the Istanbul Assize Court to send it the relevant case file for examination.
9. At a hearing on 15 May 1998, the State Security Court asked the Anti-Terrorist Branch of the Istanbul Security Headquarters and the Bakırköy Public Prosecutor’s Office to produce documents and reports relating to certain incidents involving the accused. It also requested documents from two other courts before which separate proceedings against two of the accused were pending. At the next four hearings the State Security Court reiterated these requests, as it had received no response from the courts concerned.
10. At a hearing on 18 November 1998, since it had still not received from the Istanbul Assize Court the case file concerning those police officers accused of ill-treating certain defendants, the State Security Court revised its request and asked simply to be informed about progress in the case. It also requested a copy of the final decision once the case had been concluded. It reiterated this request at the next eleven hearings.
11. On 14 April 1999 the State Security Court decided to sever the case of one of the defendants and to join it to another case which was pending before a different chamber.
12. On 18 June 1999 the Public Prosecutor’s Office submitted its opinion on the merits of the case.
13. At the next twenty-three hearings before the Istanbul State Security Court, the applicant’s lawyer made applications for his client’s release pending trial, which the court dismissed in view of the nature of the offence, the state of the evidence and the material in the case file. At hearings on 14 November 1997 and 11 March 1998, the court again remanded the applicant in custody, noting that his release would entail a risk of his absconding.
14. On 8 December 2000, having still not received any information concerning the case against the police officers pending before the Assize Court, the Istanbul State Security Court requested a copy of either the final decision or the indictment.
15. On 28 February 2001 the Istanbul Assize Court informed the State Security Court that the case was still pending and produced the indictment.
16. On 22 May 2001 the applicant’s lawyer filed a petition with the Istanbul State Security Court requesting the applicant’s release pending trial. He relied on Article 19 § 3 of the Constitution and Article 5 of the Convention. He contended that the court’s continued refusal to grant bail was groundless. On 24 May 2001, noting the arguments put forward by the applicant’s lawyer in his written petition and the opinion of the public prosecutor, a different chamber of the Istanbul State Security Court dismissed the application for release pending trial.
17. At a hearing of 19 October 2001, taking into account the length of the applicant’s detention, the nature of the offence and the material in the case file, the Istanbul State Security Court decided to order the applicant’s release on bail.
18. On 31 January 2003, after some thirty hearings, the State Security Court acquitted five of the accused, convicted the applicant and six others and suspended the proceedings for the remainder, in accordance with Law no. 4616 on conditional release, the suspension of proceedings or the execution of sentences in respect of crimes committed before 23 April 1999. It convicted the applicant under Article 168 § 2 of the Criminal Code and sentenced him to twelve years and six months’ imprisonment.
19. On 25 May 2004 the Court of Cassation quashed the State Security Court’s decision as regards the applicant and six others.
20. By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, state security courts were abolished. The case against seven of the accused, including the applicant, was remitted to the Istanbul Assize Court.
21. In the resumed proceedings, on 2 September 2004 the Istanbul Assize Court summoned all the accused to the next hearing, so that they could submit their views on the Court of Cassation’s decision. It also requested the Kadıköy Public Prosecutor to send it documents concerning an illegal demonstration in Kadıköy in 1996 which the accused were alleged to have organised and in which they had allegedly taken part.
22. At the hearing of 10 December 2004, the Istanbul Assize Court ordered the arrest of four of the accused, including the applicant, as they had not responded to the summonses sent to their addresses listed in the case file. It repeated its request to the Kadıköy Public Prosecutor.
23. Neither the applicant nor his representative was present at hearings held on 4 March 2005, 6 May 2005, 19 October 2005 and 3 February 2006. The Assize Court reissued warrants for the arrest of the applicant and three other absconders for the purpose of obtaining their submissions.
24. The case is still pending before the Istanbul Assize Court. The last hearing was held on 4 March 2005. The court has issued a fresh warrant for the applicant’s arrest.
VIOLATED_ARTICLES: 5
6
VIOLATED_PARAGRAPHS: 5-3
6-1


ITEMID: 001-58287
LANGUAGEISOCODE: ENG
RESPONDENT: FRA
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF SELMOUNI v. FRANCE
IMPORTANCE: 1
CONCLUSION: Preliminary objection rejected (non-exhaustion);Violation of Art. 3;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
JUDGES: Luzius Wildhaber
TEXT: 7. Mr Selmouni, a Netherlands and Moroccan national, was born in 1942 and is currently in prison in Montmédy (France).
8. On 20 November 1991 the police arrested Géray Tarek, Dominique Keledjian and Mr Keledjian’s girlfriend in connection with a drug-trafficking investigation, on the instructions of Mr de Larosière, an investigating judge at the Bobigny tribunal de grande instance. Dominique Keledjian made a voluntary statement, telling the police that he had bought his heroin in Amsterdam from a certain “Gaby”, who had helped him conceal it in order to bring it into France over a number of trips. He gave the police a telephone number in Amsterdam which enabled them to identify the applicant.
9. On 25 November 1991 Mr Selmouni was arrested following surveillance of a hotel in Paris. After being identified by Dominique Keledjian and his girlfriend, Mr Selmouni explained that he had had business dealings with Dominique Keledjian in the clothes trade. He denied any involvement in drug trafficking.
10. Mr Selmouni was held in police custody from 8.30 p.m. on 25 November 1991 until 7 p.m. on 28 November 1991. He was questioned by police officers from the Seine-Saint-Denis Criminal Investigation Department (“SDPJ 93”) in Bobigny.
11. Mr Selmouni was first questioned from 12.40 a.m. to 1.30 a.m. on 26 November 1991 by the police officers against whom he later made a complaint. Having been questioned and taken back to the court cells, Mr Selmouni had a dizzy spell. The court cell officers took him to the casualty department at Jean Verdier Hospital in Bondy at 3.15 a.m. The medical observations made by the casualty department read as follows:
“Date of examination: 26 November 1991. 3.15 a.m. Attends casualty complaining of assault. On examination, several superficial bruises and injuries found on both arms. Bruises on outer left side of face. Bruise on left hypochondrium. Marks of bruising on top of head. Chest pains increase with deep respiration. Neurological examination shows no abnormalities.”
12. On 26 November 1991 the investigating judge extended police custody by forty-eight hours. Mr Selmouni was questioned from 4.40 p.m. to 5.10 p.m., at 7 p.m., from 8 p.m. to 8.15 p.m. and from 10.25 p.m. to 11.30 p.m. On the same day Mr Selmouni was examined by a Dr Aoustin, who made the following observations:
“Bruising to the left eyelid, left arm, lower back. Scalp painful.”
13. On 27 November 1991 Mr Selmouni was questioned from 11 a.m. to 11.40 a.m. On examining him again, Dr Aoustin made the following notes:
“Substantial bruising to the left eyelid, left arm, lower back. Bruising to the scalp. Ate nothing yesterday … Complaints forwarded.”
14. After being questioned from 9.30 a.m. to 10.15 a.m. on 28 November 1991, Mr Selmouni was again examined by Dr Aoustin, who noted on his medical certificate:
“Bruising to the left eyelid, left arm, lower back. Bruising to the scalp. No current treatment.”
15. At 11.30 a.m. on 29 November 1991 the applicant was examined by Dr Edery, a general practitioner. He drew up a certificate, at Mr Selmouni’s request, to the effect that Mr Selmouni claimed to have been assaulted. The certificate stated:
“Headaches, bruises under left and right eyes, on left and right arms, back, thorax, left and right thighs and left knee. All areas painful.”
16. On the same day the applicant was brought before the investigating judge, who charged him with offences against the dangerous drugs legislation and remanded him in custody. On Mr Selmouni’s first appearance before the investigating judge, the latter, on his own initiative, appointed Dr Garnier, an expert in forensic medicine on the Paris Court of Appeal’s panel, to examine Mr Selmouni, “who claim[ed] to have been illtreated while in police custody”, and another person, Mr Abdelmajid Madi, arrested on 26 November 1991 and charged with the same offences.
17. On 2 December 1991 the applicant was examined by Dr Nicot from the medical department of Fleury-Mérogis Prison. In a medical certificate drawn up at Mr Selmouni’s request the doctor made the following observations:
“… extensive bruising to the trunk and thighs and substantial bruising round the eyes. Presents conjunctival bruises. Says sight impaired in left eye.”
18. On 7 December 1991 Dr Garnier, the expert appointed by the investigating judge, examined the applicant at the prison. Mr Selmouni made the following statement to the doctor:
“I was stopped in the street on 25 November 1991 at about 9 a.m. There were no problems at that stage. I was taken to the hotel where I was living. One of the six plain-clothes policemen then hit me in the area of my left temple. I was then taken to Bobigny police station. At about 10 a.m. I was taken up to the first floor, where about eight people started hitting me. I had to kneel down. One police officer pulled me up by my hair. Another policeman hit me repeatedly on the head with an instrument resembling a baseball bat. Another one kept kicking and punching me in the back. The interrogation continued non-stop for about an hour. In the night I asked to be examined. I was taken to hospital, where I had head and chest X-rays. I was hit again at about 9 p.m. the following day during a further interrogation and this went on until 2 a.m. When I arrived at Fleury, I underwent a medical examination.”
19. The doctor noted in his report:
– “sub-orbital haematoma extending 2 cm below the left lower eyelid, purplish, almost completely healed,
– thin linear scar, approximately 1 cm long, continuing the line of the left eyebrow,
– one right sub-orbital haematoma, almost completely healed,
– multiple skin abrasions (six of which are large), almost completely healed, on the left arm,
– two 5 cm linear skin abrasions – possibly scratches – on the right arm,
– 0.5 cm skin lesion on the back of the right hand,
– haematoma on the back of the thorax, over the right shoulder blade,
– one haematoma on the right side,
– severe (10 cm by 5 cm) haematoma on the left side of the thorax,
– three haematomas on the left side,
– severe (5 cm by 3 cm) haematoma on the front of the thorax, purplish, in the epigastric region,
– haematoma in the right prehepatic region,
– haematoma on the left of the ribcage 5 cm below the nipple,
– 5 cm by 3 cm haematoma on the left side on the axillary line,
– haematoma in the right subclavian region,
– haematoma on the right buttock,
– 10 cm by 5 cm haematoma on the left buttock,
– 5 cm by 1 cm linear haematoma on the outer front part of the left thigh,
– skin abrasion corresponding to a wound, now healing, on the front of the right ankle,
– swelling on the back of the right foot and a skin abrasion on the back of the foot,
– five superficial wounds, now healing, on the lower front part of the right leg,
– skin abrasions and bruised swelling on the back of the first two metacarpals of the left hand.
The patient states that on his arrival at Fleury he was treated with skin cream and given painkillers.
No injuries to the scalp or left eyeball …”
20. The conclusion of the report is as follows:
“CONCLUSION
Mr Selmouni states that he was subjected to ill-treatment while in policy custody.
He presents lesions of traumatic origin on his skin that were sustained at a time which corresponds to the period of police custody.
These injuries are healing well.”
21. That report was attached to the investigation file opened in respect of the applicant. On 11 December 1991 the investigating judge sent it to the public prosecutor’s office.
22. In an order of 8 September 1992 the investigating judge committed the applicant for trial at the Criminal Court and ordered him to be kept in detention on remand.
23. On 17 February 1992 the public prosecutor’s office at the Bobigny tribunal de grande instance instructed the National Police Inspectorate to question the police officers concerned.
24. When questioned at Fleury-Mérogis Prison by an officer of the National Police Inspectorate on 1 December 1992, the applicant confirmed his earlier statement as follows:
“… At about 8.30 p.m. on 25 November 1991 I was arrested in the vicinity of my hotel, the Terminus Nord, near the Gare du Nord in Paris by two or three plain-clothes policemen. They pushed me against a wall while pressing the barrels of two guns against my neck.
I offered no resistance to my arrest and did not struggle.
You remind me that during questioning on 27 November 1992 I admitted that I had attempted to escape arrest. I dispute that. First of all, I maintain that I did not make such a statement to the police officer who questioned me and, moreover, I signed the records of interview without having read them. The policeman told me on my release from police custody that he had got me to sign that I had resisted arrest and that they were covered.
I was alone when I was arrested and immediately afterwards I was taken to my hotel room, which was searched in my presence. Two other policemen were already there.
While they were searching my room, the youngest police officer of the group punched me on the left temple. When they had finished searching my room I was taken to the Drugs Squad station in Bobigny and to an office on the first or second floor.
After I had been subjected to a body search, during which everything in my possession was taken, my interrogation by five police officers began.
One of them, who appeared to be in charge, made me kneel on the floor and began pulling my hair while another one hit me in the ribs with a stick resembling a baseball bat.
He then kept tapping me on the head with the bat.
The three other police officers were also actively involved, punching me and some of them standing on my feet and crushing them.
I seem to recall arriving at Bobigny police station at about 10 p.m. The treatment I have described continued until 1 a.m.
Following that first interrogation I was handed over to uniformed policemen on the ground floor of the building in which I was detained. As my ribs and head were hurting from the blows I had received, I informed these policemen and was taken in the night to a hospital in the area, but cannot say which one. There I underwent several examinations, including X-rays, and was later taken to a police station, but not the one to which I had first been taken.
The uniformed police officers treated me decently.
The following morning, before being questioned a second time, I was examined on the premises of the Drugs Squad by a doctor, who was able to see the marks on my body caused by the policemen’s brutality.
On 26 November 1992 I was questioned again by several police officers – three or four – at some point in the day. I believe it was at about 10 a.m. On that occasion they pulled my hair, punched me and hit me with a stick.
In the evening of the same day, when there were fewer staff on the first floor, I was questioned again by six police officers, who were particularly brutal to me. I was punched, and beaten with a truncheon and a baseball bat. They all carried on assaulting me until 1 a.m. I think that this session of ill-treatment had begun at about 7 p.m. At one point they made me go out into a long office corridor where the officer I presumed was in charge grabbed me by the hair and made me run along the corridor while the others positioned themselves on either side, tripping me up.
They then took me into an office where a woman was sitting and made me kneel down. They pulled my hair, saying to this woman ‘Look, you’re going to hear somebody sing’.
I remained there for about ten minutes. I cannot describe this woman to you, but she looked young.
I was then taken back out into the corridor, where one of the police officers took out his penis and came up to me saying ‘Here, suck this’; at that point I was on my knees. I refused, keeping my mouth closed because he had brought his penis up to my lips.
When I refused, that officer urinated over me at the suggestion of one of his colleagues.
After that, I was taken to an office and threatened with burns if I did not talk. When I refused, they lit two blowlamps which were connected to two small blue gas-bottles. They made me sit down and placed the blowlamps about one metre away from my feet, on which I no longer had shoes. At the same time they were hitting me. Following that ill-treatment, they brandished a syringe, threatening to inject me with it. When I saw that, I ripped open my shirt-sleeve, saying ‘Go on, you won’t dare’; as I had predicted, they did not carry out their threat.
My reaction prompted a fresh outburst of violence from the policemen and I was illtreated again.
The police officers left me in peace for about fifteen minutes, then one of them said ‘You Arabs enjoy being screwed’. They took hold of me, made me undress and one of them inserted a small black truncheon into my anus.
NB. When Mr Selmouni relates that scene, he starts crying.
I am aware that what I have just told you is serious, but it is the whole truth, I really did suffer that ill-treatment.
After the sexual assault, I was put into a cell again.
The next day I was examined by a doctor, who was able to observe my condition.
I had informed the doctor that the policemen had been assaulting me and I had even asked him to tell them to stop torturing me.
The violence I have just described was committed during the nights of 25 to 26 and 26 to 27 November 1991.
Thereafter, until I was brought before the investigating judge, I was occasionally punched.
Before bringing me before the investigating judge, the policemen were very kind, even going so far as to offer me coffee.
When I signed the papers concerning my belongings, I noticed that 2,800 guilders and a Dupont lighter had disappeared. I informed a policeman about this – the one I thought was in charge – who replied ‘Shit, again’, and the matter was left at that.
The lighter bears the initials A.Z.
I can identify the six policemen who hit me.
I can also describe the part played by each one.
The officer in charge is slightly balding. The one who showed me his penis and then sodomised me with a truncheon is of medium height, fairly thickset, aged 30 to 35, and fair-haired.
As soon as I was brought before the investigating judge, I told him that I had been assaulted, and a few days later I was examined at the prison. However, on the actual day I was brought before the investigating judge I had seen a doctor at the Bobigny law courts.
I have had a lawyer for one month and have informed him of the manner in which I was treated while in police custody.
When I arrived at the prison, the marks left by the assault were all over my body. I now have trouble with my eyes.
I am lodging a complaint against the policemen.”
25. The record of the interview was sent to the Bobigny public prosecutor on 2 December 1992 as part of the proceedings numbered B.92.016.5118/4.
26. In a judgment of 7 December 1992 the Thirteenth Division of the Bobigny Criminal Court sentenced the applicant to fifteen years’ imprisonment and permanent exclusion from French territory and, as to the civil action by the customs authorities, ordered him to pay, jointly and severally with his co-accused, an aggregate sum of twenty-four million French francs. In a judgment of 16 September 1993 the Paris Court of Appeal reduced the prison sentence to thirteen years and upheld the remainder of the judgment. On 27 June 1994 the Court of Cassation dismissed the applicant’s appeal.
27. Mr Selmouni attended Hôtel-Dieu Hospital for treatment at regular intervals during his detention.
28. On 1 February 1993 the applicant lodged a criminal complaint together with an application to join the criminal proceedings as a civil party with the senior investigating judge at the Bobigny tribunal de grande instance for “assault occasioning actual bodily harm resulting in total unfitness for work for more than eight days; assault and wounding with a weapon (namely a baseball bat); indecent assault; assault occasioning permanent disability (namely the loss of an eye); and rape aided and abetted by two or more accomplices, all of which offences were committed between 25 and 29 November 1991 by police officers in the performance of their duties”.
29. On 22 February 1993, in the proceedings numbered B.92.016.5118/4, the Bobigny public prosecutor requested that an investigation be opened into the complaint lodged by Mr Selmouni and a similar complaint lodged by a co-defendant, Mr Madi, concerning offences committed by a person or persons unknown of assault and wounding, with a weapon, of a defenceless person and indecent assault. The complaint lodged by the applicant on 1 February 1993 was registered on 15 March 1993. These new proceedings were given the reference number B.93.074.6000/9.
30. On 27 April 1993 Mrs Mary, the investigating judge at the Bobigny tribunal de grande instance to whom the case had been allocated, issued formal instructions to the Director of the National Police Inspectorate to take all necessary steps to establish the truth. She set 15 June 1993 as the date for filing his reports.
31. On 9 June 1993 Dr Garnier re-examined Mr Selmouni, at Mrs Mary’s request. In his report, which he filed on 21 June 1993, he made the following observations:
“When I first examined Mr Selmouni, he stated that he had been assaulted while in police custody. He has told me today that he did not mention the sexual assault on that occasion because he felt ashamed of it.
An examination of the anal sphincter does not reveal any lesion such as to corroborate or invalidate the patient’s statements, mainly owing to the amount of time which has elapsed since the alleged acts.
The somatic lesions recorded in the previous medical certificate are healing well with no complications.
As regards the alleged sexual assault, in the absence of any functional repercussion or visible injury, no sick-leave on grounds of total unfitness for work [‘ITTP’] is necessary as a direct result of the alleged acts.
TOTAL UNFITNESS FOR WORK
The lesions recorded in the first medical certificate and observed when I prepared my first expert report are traumatic lesions with no serious features (haematomas and bruises) and necessitate an ITTP of 5 days.
CONCLUSION
Mr Selmouni states that he was sexually assaulted and beaten while in police custody.
The traumatic lesions necessitated an ITTP of 5 days. The patient states that his sight in his left eye is impaired. An examination by an eye specialist is necessary if a causal link with the alleged acts is to be established.
As regards the sexual assault, in the absence of any visible injury and any functional repercussions, an ITTP is not necessary.”
32. In an order of 15 June 1993 the investigating judge decided to join the two complaints relating to the same offences under the single reference B.92.016.5118/4.
33. She interviewed the applicant on 14 May 1993, instructed an expert on 9 June 1993 and served the parties with the expert’s medical report on 15 September 1993.
34. On 7 July 1993 the applicant sent the investigating judge a copy of the medical certificates of 29 November and 2 December 1991 and reiterated the terms of his complaint.
35. In a letter of 3 September 1993 to the President of the Tenth Division of the Paris Court of Appeal, which was to hear the applicant’s appeal against his conviction for offences against the dangerous drugs legislation, the applicant said that he had been raped with the baseball bat and added that a police officer had urinated over him. The applicant stated that, before sending that letter, he had also informed the President of the thirteenth division of the Bobigny Criminal Court of the ill-treatment inflicted on him while he was in police custody.
36. In a formal instruction of 8 October 1993 the investigating judge reiterated her request of 27 April 1993 as the 15 June 1993 time-limit for sending in the police inspectorate’s reports had not been complied with. She also ordered Mr Selmouni’s medical files to be seized at Fresnes Prison Hospital, Fleury-Mérogis Prison and Hôtel-Dieu Hospital.
37. The investigating judge interviewed the civil parties again on 6 December 1993, after receiving on 2 December 1993 the evidence taken by the police inspectorate on her instructions. On 26 January 1994 a lawyer was officially appointed to represent the applicant under the legal aid scheme. In letters of 23 June and 27 October 1994 the lawyer in question told the applicant that she was having difficulties obtaining a visiting permit.
38. The civil parties were interviewed again on 10 February 1994, on which date an identity parade was organised in order to identify the police officers against whom the allegations had been made. Mr Selmouni picked out four police officers from the ten who took part in the identity parade. They were Mr Jean-Bernard Hervé, Mr Christophe Staebler, Mr Bruno Gautier and Mr Patrice Hurault.
39. With a view to charging the police officers identified by the civil parties, the investigating judge sent the case file to the public prosecutor’s office on 1 March 1994.
40. The Bobigny public prosecutor referred the case to the Paris Principal Public Prosecutor who, in turn, referred it to the Court of Cassation.
41. In a judgment of 27 April 1994 the Court of Cassation decided to remove the case from the Bobigny investigating judge and transfer it to a judge of the Versailles tribunal de grande instance, in the interests of the proper administration of justice. On 21 June 1994 the public prosecutor at the Versailles tribunal de grande instance reopened the investigation, under the reference V.94.172.0178/3, into offences of
“assault by public servants occasioning total unfitness for work for more than eight days and sexual assault by several assailants or accomplices, against any persons identified as a result of the investigation”.
42. On 22 June 1994 the case was allocated to Mrs Françoise Carlier-Prigent, the Vice-President of the Versailles tribunal de grande instance in overall charge of judicial investigations.
43. On 8 August 1994 the investigating judge requested that both of Mr Selmouni’s medical files that had been placed under seal by the National Police Inspectorate be sent to her. The sealed documents were sent to her on 12 April 1995.
44. On 19 September 1995 Mr Selmouni underwent an operation on his left eye at Hôtel-Dieu Hospital.
45. In an order of 22 September 1995 the investigating judge appointed an eye specialist, Dr Biard, to examine Mr Selmouni.
46. On 5 January 1996 the medical expert was granted an extension of time in which to file his report. He filed it on 18 January 1996. In it he made the following findings:
“1. Mr Selmouni’s eyesight has deteriorated since he was operated on in September 1995. It cannot be said with certainty that it really deteriorated between 25 November 1991 and the end of September 1995.
2. The assault of which he complains, namely the blows to the left periorbital region of his face, could have caused eye injuries, but apart from subjective symptoms of metamorphopsia, or even reduced vision, and of an isolated problem with the epiretinal membrane, no mark on the eye, in particular the anterior chamber, has ever been found, nor has any sign of haemorrhaging in the retina occurring contemporaneously with the blows complained of and enabling a link to be established between them. However, signs of degeneration were found in relation to a constitutional disorder (short-sightedness in both eyes).”
47. On 6 February 1996 the medical report was served on Mr Selmouni, who also gave evidence. He maintained his allegations against the four police officers he had named. On 7 March 1996 evidence was also heard from the other civil party, Mr Madi. Mr Madi named a fifth police officer, Mr Alexis Leclercq.
48. In a letter of 2 May 1996 the investigating judge asked the Director of the Criminal Investigation Department (“CID”) for the names and addresses of the police officers against whom the complaints had been filed. He replied on 23 May 1996.
49. On 21 October 1996 the investigating judge officially informed the five police officers implicated by the applicant that they were being placed under investigation.
50. The five police officers against whom Mr Selmouni and Mr Madi had lodged their complaints, namely Mr Hervé, Mr Staebler, Mr Gautier, Mr Leclercq and Mr Hurault, were questioned on their first appearance on 10, 24 and 31 January, 28 February and 7 March 1997. They were placed under investigation for assault by public servants occasioning total unfitness for work for more than eight days. Mr Hervé, Mr Staebler, Mr Gautier and Mr Hurault were also placed under investigation for sexual assault committed by a number of assailants or accomplices.
51. On 24 April 1998, in view of the denials by the police officers, who maintained that a “struggle” had ensued when Mr Selmouni was arrested, the investigating judge appointed Dr Garnier as expert again, instructing him to examine all Mr Selmouni’s medical files and certificates and give his opinion as to whether the injuries found could have been caused in a “struggle” when he was arrested at approximately 8.30 p.m. on 25 November 1991 or whether they supported the applicant’s allegations.
52. On the same day the applicant requested that a number of investigative measures be carried out, including a further confrontation between witnesses and further medical reports in order to determine the damage he had suffered, and an inspection by the judge of the premises on which he had been held in police custody. In an order of 7 May 1998 the investigating judge dismissed the requests, on the ground that some of them had been partly satisfied.
53. On 4 June 1998 a confrontation was held between the applicant and the four police officers. He described the part each of them had played while he had been in their custody.
54. Dr Garnier’s report was filed on 3 July 1998. The expert concluded his report in the following terms:
“An examination of the medical file shows that doctors found a progression of injury marks on the patient’s body during the period in police custody.
A number of them could certainly have been caused during a ‘struggle’ when the patient was arrested at approximately 8.30 p.m. on 25 November 1991, as described by the CID officers in question.
The injuries, particularly those on the lower limbs and buttocks, which were not seen on the first examination, would certainly have been sustained after that arrest and support the patient’s statements.
As regards the acts of sodomy described by the patient, the negative result of the test carried out on 9 June 1993, that is one and a half years after the initial facts, neither disproves nor proves that they occurred.”
55. On 25 August 1998 the investigating judge served notice on Mr Selmouni that the investigation was complete. The investigation file was sent to the public prosecutor’s office on 15 September 1998.
56. On 19 October 1998 the public prosecutor submitted his written statement of how he wished the investigating judge to proceed with the case. He submitted, inter alia:
“ … the denials by the police officers concerned do not stand up to examination any more than does their reference to a ‘struggle’ when effecting the arrest or to forceful resistance during questioning.
The absence of any variation or inconsistency in the statements made by Ahmed Selmouni and Abdelmajid Madi justifies taking them into consideration. They are, moreover, corroborated by medical findings and therefore amount to sufficient evidence against the five persons in question for the allegations to be examined by the trial court …”
57. In an order of 21 October 1998 the investigating judge committed the five police officers in question for trial at the Versailles Criminal Court. In respect of Mr Selmouni’s allegations, the judge committed the four police officers concerned for trial at that court on charges of assault occasioning total unfitness for work for less than eight days and indecent assault committed collectively and with violence and coercion.
58. The trial was held at the Versailles Criminal Court on 5 February 1999. The applicant filed pleadings in support of an objection that the court had no jurisdiction to try the case and that it should be transferred to the Assize Court. He submitted that the sexual assault had in fact been rape; that he had been the victim of assault occasioning permanent disability, namely loss of visual acuity, committed by public servants; and, lastly, that the illtreatment he had suffered should be classified as acts of torture inflicted before or during the commission of a crime. The court joined that objection to the merits. At the end of the trial the public prosecutor requested that Mr Hervé be sentenced to four years’ imprisonment and Mr Staebler, Mr Hurault and Mr Gautier to three years’ imprisonment. The Criminal Court reserved judgment until 25 March 1999.
59. In a judgment of 25 March 1999 the Versailles Criminal Court dismissed the objection to jurisdiction raised by Mr Selmouni, on the following grounds in particular:
(a) as to classification of the sex offence as rape:
“ … The Court must, however, conclude that neither the medical certificates nor the expert reports support the allegation of anal penetration. Furthermore, Selmouni was unable to identify the police officer who had allegedly raped him. Accordingly, the offence cannot be classified as rape.”
(b) as to classification of the assault as assault occasioning permanent disability:
“ … The Court observes that the expert report prepared by Dr Biard does not allow a causal link to be established between Mr Selmouni’s loss of visual acuity and the blows he received. This point of his objection therefore cannot be allowed.”
(c) as to classification of the ill-treatment as acts of torture inflicted before or during the commission of a crime:
“Apart from the fact that those acts were not so classified in the former Criminal Code applicable at the material time, in the instant case the acts of violence inflicted on Ahmed Selmouni which he alleges should be classified as acts of torture or barbarism were not inflicted before or during the commission of a crime.
The Court therefore considers that the acts in question cannot be classified as a crime …”
60. In determining whether or not the police officers were guilty, the Criminal Court noted that “two completely contradictory arguments [had been] submitted to it” and decided to examine “in turn” “a number of explanations” given by the police officers. Assuming that “it [had been] established … that [the applicant’s] injuries [had been] caused during – or within a very short time before or after – police custody”, the court considered that the attempts made by the civil parties to resist arrest did not suffice to explain the extent of the injuries found; that the “inconsistencies”, if any, in the civil parties’ statements were not decisive and that, in general, “the civil parties had been consistent in their account of events and the timing of them”; that even where there is strong evidence, “any police officer knows well that a confession is preferable and very difficult for a defendant to contest later”; and that “there [was] ample evidence to disprove the allegation that the civil parties [had] conferred when filing their complaints against the police officers”.
61. The Versailles Criminal Court found that “the evidence gathered during the investigation and produced at the trial show[ed] that events [had] indeed occur[red] in the manner described by the victims” and convicted the police officers of the offences charged. The court considered itself bound to “apply the criminal law in a way that [would] serve as an example to others” and sentenced Mr Hurault, Mr Gautier and Mr Staebler to three years’ imprisonment. With regard to the fourth police officer, the court held:
“ … in his capacity as Detective Chief Inspector in charge of the group of police officers, Bernard Hervé was responsible for the methods used to conduct the investigation under his control and direction. In addition, he had been directly involved in the assault since he had pulled the civil parties’ hair. The civil parties had unequivocally identified him as the officer in charge.
The Court therefore deems it necessary to punish Bernard Hervé more severely for his actions and sentences him to four years’ imprisonment.
As Mr Hervé is still in a position of responsibility, it is necessary, as a matter of public policy, that sentence be executed immediately. The Court issues a warrant for Bernard Hervé’s arrest.”
62. The Versailles Criminal Court declared admissible Mr Selmouni’s application to join the proceedings as a civil party. It noted that he had not quantified his claims for damages and that he had reserved the right to apply to the civil courts.
63. The police officers appealed.
64. In a judgment of 8 April 1999 the Versailles Court of Appeal dismissed an application for release made by Mr Hervé, on the following grounds:
“… the offences in question, because of their exceptionally serious nature having regard to the status of senior police officer [officier de police judiciaire], responsible for enforcing the laws of the Republic, possessed by the accused, who was convicted at first instance, have resulted in serious and continuing prejudice to public order …”
65. In a judgment of 1 July 1999, following hearings on 20 and 21 May 1999, after which Mr Hervé was released, the Versailles Court of Appeal acquitted the policemen for lack of evidence on the charge of indecent assault, but held them to be guilty of “assault and wounding with or under the threat of the use of a weapon, occasioning total unfitness for work for less than eight days in the case of Selmouni and more than eight days in the case of Madi, by police officers in the course of their duty and without legitimate reason”. It sentenced Mr Hervé to eighteen months’ imprisonment, of which fifteen months were suspended, Mr Gautier and Mr Staebler to fifteen months’ imprisonment suspended and Mr Hurault to twelve months’ imprisonment suspended. The Court of Appeal gave, inter alia, the following reasons for its decision:
“As to guilt
As to the assaults
In absolute terms the word of a policeman, a fortiori that of a senior one [officier de police judiciaire] is more credible than that of a drug trafficker. That premiss, however, is weakened, and even made unsound, where statements by offenders are supported by external evidence such as medical findings. It is put even more in doubt where the explanations provided by the policemen vary significantly during the course of the proceedings; and the presumption in favour of the police is destroyed if it is shown, as in the instant case, that the police reports do not reflect the truth.
As to the medical findings
The accusations made by the civil parties are supported by unequivocal medical findings. In the first place, as regards Selmouni, the expert Professor Garnier noted in his report of 5 May 1998 that all the doctors who had examined him while he was in police custody had found lesions of traumatic origin on the left arm, in the left orbital region, on the scalp and on the back. On 29 November 1991 further lesions were seen on the lower limbs. He added that during his examination on 7 December 1991 he had again found lesions that had been described earlier and that he found others on the buttocks and on the right ankle.
The extent of the injuries on Selmouni’s person increased as the uninterrupted police custody continued.
The bruising to the left eyelid, the thin linear scar one centimetre long continuing the line of the left eyebrow, the left and right sub-orbital haematomas found on 29 November 1991 by Dr Edery, and then described on 2 December 1991 by Dr Nicot as being ‘round the eyes’, are consistent with the punching mentioned by Selmouni.
The various haematomas found on the thorax, the left and right sides and the abdomen are consistent with the punching and kicking in his statement of 7 December 1991.
The pain in the scalp and the headaches mentioned by Drs Aoustin and Edery are likewise of a kind to support Selmouni’s statements, according to which his hair was pulled and he was repeatedly tapped on the head with an instrument which could have been a baseball bat.
The haematomas found on the buttocks and the thighs could only have come from blows from a blunt instrument. Similarly, the lesions apparent on the legs, ankles and feet are consistent with the blows or crushing that Selmouni complained of.
It follows from the foregoing that the objective injuries, as recorded in successive examinations, match the blows described by Selmouni.
As regards Madi, the medical certificates and the expert medical opinions attest to the reality and intensity of the blows he sustained. Further, as set out by the expert, the time that elapsed between the appearance of the objective injuries and the events in issue strongly suggests repeated small injuries.
The scalp abrasions are absolutely consistent with his statement that on numerous occasions he was repeatedly struck on the head with a blunt instrument.
The rectangular shape of the large haematoma on the right thigh and of the three haematomas on the left thigh corresponds exactly to blows struck with a blunt instrument, as described by the complainant.
As to the accounts given by the defendants
The defendants’ explanations of how the injuries found came about totally lack credibility. Moreover, on these points as on others, their explanations varied. JeanBernard Hervé, for instance, initially stated that he had acted as a reinforcement to arrest Selmouni (D57) but subsequently said that he was not in the street where the arrest took place but inside the hotel.
The defendants maintain that the accusations against them are the result of orchestrated, concerted action. It should be noted at this point that throughout the seven years of inquiries and judicial investigation no evidence was found to substantiate that allegation. The complainants’ interests differed appreciably. The successive descriptions of the ill-treatment they alleged that they had suffered do not disclose any connivance, and it should be pointed out that Selmouni himself was hardly ever assisted by a lawyer in the proceedings concerning drug trafficking.
It is not without relevance to note that Madi and Selmouni, who had never been in police custody before, could not have made use of previous experience of it to fabricate a completely false story.
The mere fact of Selmouni’s arrest near his hotel, even if it is assumed to have entailed something of a struggle, cannot explain either the seriousness of the injuries or their gradual onset as confirmed by the photographs in the file, seeing that, immediately afterwards, the policemen concerned did not record any suspicious signs either on their own persons or on that of Selmouni, signs that would have warranted a thorough medical examination, which would have been in their own interest.
As regards Madi, the policemen’s account, according to which he had deliberately banged his head against a wall and a cupboard, is not consistent with the findings of the medical examinations.
The expert noted that in this type of occurrence it is normal to find, at the time of the events, unequivocal injuries and even bleeding wounds, which was not the case here.
Taken as a whole, these factors persuade the Court that the alleged resistance to arrest was invented by the accused to justify the seriousness and location of the haematomas and the lesions found on the detainee.
As to the reliability of the police reports
The policemen from SDPJ 93, in particular Jean-Bernard Hervé, admitted in court that several reports drawn up during the detention of Selmouni and Madi in police custody contained inaccurate statements both as to times and as to the identity of those who had written them. No persuasive logical explanation of this was given to the Court. Hurault, for example, drew up a report (D114) on the search which he made at Gonesse from 5.30 p.m. to 6.55 p.m. on 26 November, and ‘recorded’ at 6.45 p.m. – that is to say at the same time – in another report (D158) that Madi had resisted arrest, and also told the Court that he had intervened to calm him.
The complete unreliability of the documents drawn up by the investigators is extremely serious in that the entire functioning of the criminal justice system rests on the reliance that may be placed on the reports of senior police officers and their assistants [officiers et agents de police judiciaire].
In view of all the foregoing, the brutality of which the defendants are accused is patent and the trial court rightly held that during the proceedings they had done nothing but conceal the truth about their behaviour.
…
As to the sentence
The offences of which the defendants are guilty are exceptionally serious ones, and that precludes their benefiting from the provisions of the amnesty of 3 August 1995. They must be regarded as instances of particularly degrading treatment. Having been committed by senior officials responsible for enforcing the laws of the Republic, they must be punished firmly as such conduct cannot be justified, irrespective of the personality of the offenders in their charge and the degree of their corruption and dangerousness.
The seriousness of the offences, however, cannot be compared with what it would have been if the sexual assaults had been made out against the defendants. Nor do the offences appear to have been the result of a concerted plan. In view of the part played by each, the absence of any previous criminal record and the administrative files on the defendants, the Court considers that it must accordingly reduce the length of the prison sentences as indicated in the operative provisions of the judgment and leave it to the discretion of the defendants’ superiors to determine what disciplinary consequences are necessary in the case, the prison sentences being suspended, only in part as regards Hervé, whose responsibility appears greater, regard being had to his being the officer in charge.
...”
VIOLATED_ARTICLES: 3
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-94446
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF KORCZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1937 and lives in Poznań.
5. By an administrative decision of 29 June 1978 of the Head of the Dominowo District (Naczelnik Gminy) the real estate owned by the applicant’s husband was transferred to his son – S.K. Neither the applicant’s husband nor the applicant was informed by the authorities about this decision.
6. In 1990 the applicant’s husband died in a car accident.
7. On 11 February 1999 the applicant filed a request with the Commune Office (Urząd Gminy) for retrospective leave to appeal against the decision of 29 June 1978.
8. On 23 February and 17 March 1999 the applicant was informed by the Mayor of the Dominowo Commune (Wójt Gminy) that her request had been left without consideration.
9. On 22 March 1999 she complained to the Head of the Commune Council (Przewodniczący Rady Gminy) about the fact that her case had been left without consideration and that no decision had been taken on it. She did not receive any answer.
10. On 14 January 2001 the applicant repeated her request for retrospective leave to appeal against the decision of 29 June 1978.
11. On 6 December 2000 the Commune Office (Urząd Gminy) informed the applicant that her request could not be dealt with since the case file had been sent to the Supreme Administrative Court (Naczelny Sąd Admnistracyjny).
12. On 3 March 2005 the applicant complained to the Commune Office about the delay. She asked for the proceedings to be accelerated.
13. On 5 April 2005 she lodged a complaint about the inactivity of the Mayor of the Commune with the Regional Administrative Court (Wojewódzki Sąd Administracyjny).
14. On 9 June 2005 the Regional Administrative Court rejected the applicant’s complaint, since the applicant had failed to lodge it in accordance with the formal requirements set out in Polish law, namely she had failed to lodge a complaint with the administrative authority under Article 37 of the Code of Administrative Procedure.
15. On 3 February 2006 the applicant lodged a complaint about the inactivity of the Mayor of the Dominowo Commune with the SelfGovernment Board of Appeal (Samorządowe Kolegium Odwoławcze). The complaint was referred to the Dominowo Commune Council, being the competent administrative authority.
16. By a resolution of 30 August 2006 her complaint was dismissed as ill-founded.
17. On 4 January 2007 she lodged a complaint about the inactivity of the Mayor of the Dominowo Commune with the Regional Administrative Court. She submitted that she had lodged numerous complaints with different administrative authorities, her case had been pending for 8 years and no decision had been given on it.
18. On 5 December 2007 the Regional Administrative Court found the complaint well-founded. It held that the proceedings in the applicant’s case had exceeded a reasonable time and ordered the Mayor of the Dominowo Commune to proceed speedily with the case.
19. On 8 April 2008 the Self-Government Board of Appeal decided to grant the applicant retrospective leave to appeal against the decision of 29 June 1978.
20. The relevant domestic law and practice concerning the remedies for the inactivity of the administrative authorities at the material time are set out in the Court’s judgment in the case of Grabiński v. Poland, no. 43702/02, §§ 60-65, 17 October 2006.
VIOLATED_ARTICLES: 6


ITEMID: 001-22588
LANGUAGEISOCODE: ENG
RESPONDENT: ESP
BRANCH: ADMISSIBILITY
DATE: 2001
DOCNAME: SANCHEZ NAVAJAS v. SPAIN
IMPORTANCE: 1
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant, Mr Juan Sanchez Navajas, is a Spanish national who was born in 1958 and lives in Rute (Province of Córdoba).
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant is an employee of the Coria del Río Town Council and a trade-union representative elected by the council employees.
In 1993, in his capacity as a trade-union representative, the applicant asked the mayor to grant him fifteen hours’ paid leave for trade-union activities for the month of September 1993. That request was turned down by the mayor. The applicant sought judicial review of that decision by the Andalusia High Court of Justice which, in a judgment of 20 July 1994 granted his application, quashed the impugned decision and made a declaration that he was entitled to the requested paid leave. Following an exchange of correspondence between the applicant and the mayor, the latter granted the applicant the requested leave on 20 November 1994 but required him to account for his time. By a memorandum dated 5 November 1994 the applicant stated that he had spent the time he had been allocated studying new legislation on trade-union elections and its consequences on collective bargaining. On 9 November 1994 the mayor decided to deduct two days’ pay from the applicant’s wages for the time he had spent studying the legislation on trade-union elections, on the ground that it had been spent in his own interest rather than in that of the staff he represented. The mayor considered that the applicant should have used his own time if his aim was personal development. If, on the other hand, he wished to improve his vocational skills, he should have attended one of the courses available.
The applicant sought judicial review of that decision, considering that it ran counter to the right to trade-union freedom guaranteed by Article 28 of the Constitution. In a judgment of 6 November 1996 the Andalusia High Court of Justice dismissed his application, holding that studying provisions of trade-union law was a private activity that could not be carried out at the taxpayer’s expense. It said, inter alia:
“All this occurred in the context of appalling relations between the council and its employee, who had devoted his time over the years to making scores of applications for judicial review on the most tenuous of grounds or on the slightest pretext, thereby demonstrating the lack of any common ground between the parties. That situation left the applicant dissatisfied and ill at ease with his work and his output was no more than the bare minimum. In the tense, antagonistic climate that prevailed between colleagues who were duty bound to cooperate and serve the general interest, the sole solution is to apply the law to the letter... In that regard, it is clear that Mr Sanchez Navajas has no absolute right to paid leave from work to allow him to train and learn about recent legal issues... That is a private activity that should not be conducted at the taxpayer’s expense.”
The applicant lodged an appeal against that judgment, in which he relied on Articles 24 (right to a fair trial) and 28 (right to trade-union freedom) of the Constitution. By a decision of 15 November 1999, the Constitutional Court dismissed the appeal as being unfounded, holding that the Andalusia High Court of Justice had applied the legislation without undermining the essence of the fundamental right to trade-union freedom.
Article 11 of Law no. 9/1987 of 12 June 1987 on Representative Bodies, the Determination of Working Conditions and Staff Participation in Public Authorities provides that staff representatives shall be granted a number of hours’ paid leave for trade-union activities. According to the applicant, the Act did not specify the trade-union activities for which paid leave was available.


ITEMID: 001-90956
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: VON LOESCH v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: The applicant, Mr Markward von Loesch, is a German national who was born in 1938 and lives in Berlin. He is represented before the Court by Mr T. Gertner, a lawyer practising in Bad Ems.
A summary account of historical events in which the present application originated can be found in the Court’s decision in the case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (see Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (dec.), no. 47550/06, 7 October 2008, §§ 3-5, ECHR 2008-...).
The applicant’s family owned a manor-house in Blumenau (at present Kwietniki in Poland). In February 1945 they fled from the advancing Red Army.
This region before and during the Second World War belonged to the German Reich. After the defeat of Germany at the end of the war, when the border between Germany and Poland was drawn along the Oder-Neisse line, it was included in the territory of Poland (see Preussische Treuhand GmbH & CO. Kg A. A., cited above, § 3).
The applicant submits that he has repeatedly applied to the Polish authorities for restitution of his family’s property, but has been refused. He has not produced any documents or evidence showing that he indeed submitted any such claims to the Polish authorities.
A detailed description of the relevant international and domestic law is set out in the above-mentioned case of Preussische Treuhand GmbH & CO. Kg A. A. v. Poland (ibid. §§ 31-41).