WOLFHARD KOOP-AUTOMATEN GOLDENE 7 GmbH & Co. KG v. GERMANY

The applicant company is a limited liability company under German law with its registered office in Lübeck. It has for its object the installation and operation of gambling machines in restaurants in Eutin.

It is represented before the Court by Mr H. Schiedermair, a public law professor at Cologne University.

A.

In May 1989 the applicant company filed a declaration in respect of entertainment tax (Vergnügungssteuer) for the month of May 1989 regarding two gambling machines installed and operated in the area of the Eutin Municipality and estimated the tax due at 400 German marks (DM), on the basis of a prescribed global tax rate of DM 200 per month and per machine, irrespective of the effective returns generated by that machine. At the same time, it lodged an administrative appeal against the tax assessment to the extent that it exceeded DM 100, i. e. DM 50 for each machine. The Eutin Municipality dismissed the appeal.

Thereupon the applicant company instituted proceedings with the Schleswig Holstein Administrative Court (Verwaltungsgericht), arguing that the Eutin Statute on entertainment tax for gambling machines (Satzung über die Erhebung einer Vergnügungssteuer für das Halten von Spiel- und Geschicklichkeitsgeräten - “Statute on entertainment tax”) was void because it lacked a proper legal basis. The Administrative Court dismissed the action on 24 April 1990.

On 13 February 1992 the Schleswig Holstein Administrative Appeals Court (Oberverwaltungsgericht) dismissed the applicant company’s appeal.

The Administrative Appeals Court, in detailed reasoning based on the case-law of the Federal Constitutional Court (Bundesverfassungsgericht) and the Federal Administrative Court (Bundesverwaltungsgericht), found that the tax assessments were lawful. In particular the underlying Statute on entertainment tax had a sufficient legal basis in section 3(1) of the Schleswig Holstein Municipal Tax Act (Kommunalabgabengesetz), which could not be objected to from a constitutional point of view. In this respect, the court, referring to the relevant provision of the German Basic Law (Grundgesetz), considered that the Land was competent to enact legislation concerning local excise and luxury taxes (Verbrauch- und Aufwandsteuern) unless such matters were covered by federal legislation. The entertainment tax in question constituted a local luxury tax within the meaning of this provision which was not similar to any taxes regulated by federal legislation. Moreover, in the court’s view, section 3(1) of the Municipal Tax Act was sufficiently precise, even if in some cases the term “gambling machines” might necessitate interpretation. Furthermore, the fact that section 3(1) of the Municipal Tax Act only authorised levying entertainment tax with regard to gambling machines did not amount to discrimination. The court, referring to the discretionary powers of the legislator in tax matters, found no indication of arbitrariness in the impugned taxation and the related procedural matters. It found in particular that the taxation was based on the increasing number of gambling establishments in the municipalities and the problems resulting therefrom. The tax did not, therefore, merely serve the purpose of constituting a municipal source of revenue, but also that of opposing the expansion of gambling establishments.

Finally, in the court’s view, the tax rates fixed in the Eutin Statute on entertainment tax did not exceed the statutory limits. Having regard to the relevant case-law, the court observed that tax rates were only permissible to the extent that taxes were eventually financed by the users of the gambling machines, whereas, for the persons installing and operating the machines, the tax was to be regarded as no more than a transitory item. There was no indication that the rate of the entertainment tax in question was such as to leave the gambling machine business without any income. Moreover, the applicant company had failed to show that, in the specific case, the business was unprofitable on account of the tax levied. As regards the applicant company’s further arguments, the court considered inter alia that the defendant municipality was not prevented from fixing global tax rates, irrespective of the returns of individual machines and of whether they were installed and operated in a gambling establishment, in a restaurant or in a similar establishments. The exemptions for machines without any prospect of winning or for particular machines used in fairs could not be regarded as unreasonable.

On 9 September 1992 the Federal Administrative Court dismissed the applicant company’s request for leave to appeal on points of law. It found that the case raised no issue of fundamental importance and that the findings of the Administrative Appeals Court were in line with both the case-law of the Federal Constitutional Court and its own. Moreover, taking into account the global assessment of the tax in question, the latter could not be regarded as turn-over tax, and there had, therefore, been no reason to refer the case to the European Court of Justice on a question of community law concerning turnover-tax.

On 1 March 1997 the Federal Constitutional Court refused to entertain the appeal brought by the applicant company and similar appeals which had been joined to it. It found that the appeals were of no fundamental importance as the questions raised were already settled by the court’s case-law. Furthermore, they had no prospect of success. In this respect, the Constitutional Court observed that the taxes in question only indirectly affected the complainants’ freedom to exercise their profession. Articles 105 § 2a and 106 § 6 (1) of the Basic Law expressly mentioned local excise and luxury taxation. The Federal Constitutional Court confirmed that section 3(3) of the Schleswig Holstein Municipal Tax Act inter alia was sufficiently precise. The concept of “local excise and luxury taxes” had been clarified in its case-law. Moreover, section 3(3) of the Schleswig Holstein Municipal Tax Act specifically limited the municipal power of taxation to a specific entertainment tax. Furthermore, the traditional local excise and luxury taxes, such as the entertainment tax, could not be regarded as similar to a federal tax. The prohibition on levying similar taxes found in federal legislation (Article 105 § 2a of the Basic Law) did not, therefore, apply here. The Constitutional Court further considered that the Eutin Municipality had not exceeded its powers by emphasizing the regulatory aspect of the entertainment tax rather than its function as a source of municipal revenue. The lower courts had correctly held that the taxation did not amount to an unreasonable burden and did not render the business concerned unprofitable. Finally, according to the Constitutional Court, the Federal Administrative Court had not been obliged to refer the case to the European Court of Justice as the relevant issues were settled in the latter’s case-law.

B. Relevant domestic law

Article 105 of the German Basic Law regulates legislative competences in tax matters. Article 105 §§ 1 and 2 concern the exclusive and concurrent competences of the Federation. Paragraph 2a provides that the Länder shall have legislative competence in respect of local excise and luxury taxes as long and in so far as they are not identical with taxes imposed by federal legislation. Article 106, which concerns the apportionment of tax revenues, stipulates inter alia, in its paragraph 6, first sentence, that revenue from local excise and luxury taxes shall accrue to the municipalities.

According to section 3(1) of the Schleswig Holstein Municipal Tax Act, as amended, municipalities are authorised to levy an entertainment tax on gambling machines unless such machines are installed in places subjected to the casino tax (Spielbankabgabe).


Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicant was born in in 1947 and lives in Bratislava.

On 3 May 1991 the applicant filed an action for damages with the Bratislava I District Court. She claimed compensation for a work-related accident.

On 9 September 1993 the District Court dismissed the action. The applicant appealed on 1 October 1993.

On 31 August 1994 the Bratislava City Court quashed the first instance judgment.

On 31 October 1996 the applicant extended her action in that she also claimed the protection of her right to protection of her reputation.

On 31 July 1998 the Bratislava I District Court ordered an expert opinion to be submitted.

The applicant filed a petition pursuant to Article 130 (3) of the Constitution in which she complained about the length of the proceedings. On 22 September 1999 the Constitutional Court found that the Bratislava I District Court had violated the applicant’s constitutional right to have her case examined without undue delays.

On 18 December 2000 the Bratislava I District Court ordered an expert opinion. Subsequently the applicant unsuccessfully challenged the District Court judge.

On 12 August 2002 the District Court decided on the expert’s fees. The applicant appealed against this decision. On 6 September 2002 she submitted to the court her comments on the expert’s conclusions.

On 4 March 2003 the District Court invited the parties to submit further information. The proceedings are pending.

Article 48 (2) of the Constitution provides, inter alia, that every person has the right to have his or her case tried without unjustified delay.

Pursuant to Article 130 (3) of the Constitution, as in force until 30 June 2001, the Constitutional Court could commence proceedings upon the petition (“podnet”) presented by any individual or a corporation claiming that their rights have been violated.

According to its case-law under the former Article 130 (3) of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner’s rights under Article 48 (2) of the Constitution. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found. In the Constitutional Court’s view, it was therefore for the authority concerned to provide redress to the person whose rights were violated.

As from 1 January 2002, the Constitution has been amended in that, inter alia, individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to Article 127. Under this provision the Constitutional Court has the power, in case that it founds a violation of Article 48 (2) of the Constitution, to order the authority concerned to proceed with the case without delay. It may also grant adequate financial satisfaction to the person whose constitutional right was violated as a result of excessive length of proceedings (for further details see, e.g., Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00, 22 October 2002).

According to an explanatory letter by the President of the Constitutional Court of 6 June 2002, nothing has prevented the Constitutional Court from dealing with complaints about length of proceedings in cases in which proceedings have also been instituted before the European Court of Human Rights provided that the domestic proceedings complained of are still pending at the moment when the constitutional complaint is filed. The letter further states that where the Constitutional Court earlier found a violation of Article 48 (2) of the Constitution, a further complaint about delays in the same proceedings can be entertained only to the extent that it relates to the period after the delivery of the first finding of the Constitutional Court. However, when deciding on such cases the Constitutional Court will, as a rule, take into account that the ordinary courts have failed to proceed with the case without undue delays following its finding of a violation of Article 48 (2) of the Constitution.


The applicant, Mr Halil Yıldırım, is a Turkish national who was born in 1966 and lives in Şanlıurfa. He was represented before the Court by Mr M. A. Altunkalem, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant was working as a driver at the Şanlıurfa fire department at the time of the events.

An undercover agent of the Anti-Smuggling and Organised Crime Department of the Şanlıurfa Security Directorate (hereinafter: “the Security Directorate”) received information that the applicant was selling Kalashnikov cartridges.

After having received information that the applicant had just returned from Syria, the police officers at the Security Directorate searched the applicant’s house on 24 April 2002 and retrieved ninety-five Kalashnikov cartridges. The applicant was arrested.

The applicant maintains that he was beaten by 4 or 5 police officers during arrest. He further claims that while he was held in detention he was beaten, given electric shocks and hosed with cold water.

On the same day, at around 8.10 p.m., the applicant was examined by a doctor at Şanlıurfa State Hospital. According to the medical report issued in this respect, the applicant did not bear any physical signs of illtreatment.

According to a report drafted by a police officer and signed by the applicant, co-accused and a lawyer, the applicant met with his lawyer on 26 April 2002 at 5.50 p.m.

On the same day the applicant was interrogated. He was informed of his rights, particularly his right to a lawyer, which he waived. The applicant claimed, inter alia, that S.Ç. owed him money and that he took Kalashnikov cartridges from him as a guarantee of payment. He further submitted that he later gave 1,185 of these cartridges to B.A. as a guarantee for his own debt.

In the evening of 26 April 2002 the applicant was examined by a doctor at Şanlıurfa State Hospital. According to the medical report issued the same day, the applicant did not bear any physical signs of ill-treatment.

On 27 April 2002 the applicant was brought before the Şanlıurfa public prosecutor. He was informed of his rights, particularly his right to a lawyer which he initially waived. The applicant later changed his mind and his lawyer, Mr H.A., was present at the interrogation. The applicant acknowledged his statements made to the police and reiterated that S.Ç. had given him 1,200 Kalashnikov cartridges to pay for his debt and that he had given them to B.A. as a guarantee for his own debt to him.

On 27 April 2002 the applicant was brought before the investigating judge of the Şanlıurfa Magistrate’s Court, who ordered his remand in custody. The applicant was placed in Şanlıurfa prison.

On 30 April 2002 the applicant was examined by a prison doctor. The medical report drafted on that occasion found signs of blows on the applicant’s right shin bone in 6 or 7 places.

On 24 May 2002 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment with the same court against the applicant and two others, accusing them of smuggling 1,280 Kalashnikov bullets from Syria on 24 April 2002 and of being in possession of unlicensed bullets.

On 30 May 2002 the applicant met with his lawyer. The latter petitioned the authorities for a further medical report.

On 31 May 2002 the applicant was examined by a doctor at Şanlıurfa State Hospital. According to the medical report issued the same day, the applicant had an old ecchimose below his right knee.

On 31 May 2002 the prison director sent these reports to the Şanlıurfa public prosecutor’s office, in order that they be deposited in the case file before the Diyarbakır State Security Court.

On 2 July 2002 the applicant’s lawyer submitted a petition to the court requesting the applicant’s release. He also stated that the applicant had been subjected to serious ill-treatment whilst in police custody, as was shown in the medical reports. He requested the prosecuting authorities to launch an investigation into the allegation of illtreatment.

In a hearing held on 9 July 2002 the applicant acknowledged the contents of his statements made to the police, the public prosecutor and the investigating judge. He reiterated that S.Ç. gave him a bag for safekeeping and that he did not know there were bullets inside. He further submitted that he did not know how the 95 cartridges ended up in his house and that they must have fallen out in the car when he and S.Ç. went to give the bullets to B.A. The medical reports issued during his detention in police custody were read out to him. He stated that he had nothing to say. He was read out the medical report of 30 April 2002. The applicant submitted that the report was correct and that he was hit on his leg but as he was blindfolded he did not see how his leg was hit.

On 10 July 2002 the applicant’s lawyer applied to the Diyarbakır State Security Court for a revision of the applicant’s continued detention. He also drew the court’s attention to the fact that no action had been taken in relation to the applicant’s complaint of ill-treatment.

By a decision of 11 July 2002 a single judge of that court rejected this request and confirmed the applicant’s continued detention.

In a hearing held on 6 February 2003 the applicant stated that he had been framed. On the same day, the court, taking into account the contradictions in the applicant’s statements throughout the proceedings, the statements of the co-accused and the material evidence, convicted the applicant of the offence and sentenced him to six years and eight months’ imprisonment and a fine.

In his petition for appeal to the Court of Cassation dated 10 May 2003, the applicant’s lawyer repeated the allegation of ill-treatment.

On 18 August 2003 the Court of Cassation dismissed the appeal and upheld the judgment of the Diyarbakır State Security Court.

A description of the relevant domestic law at the material time can be found in Batı and others v. Turkey (nos. 33097/96 and 57834/00, §§ 96100, 3 June 2004).


"ENERGIA" PRODUCERS` COOPERATIVE v. ARMENIA

The applicant, “Energia” Producers' Cooperative, is a private construction company that was founded in 1986 and has its registered office in Vedi, Armenia. The applicant company was represented before the Court by its manager, Mr Hamlet Hovsepyan.

company, may be summarised as follows.

On an unspecified date, the applicant company instituted proceedings against another private company, claiming that the latter had failed to comply with its contractual obligations and seeking damages.

On 1 April 2002 the Commercial Court (ՀՀ տնտեսական դատարան) rejected the applicant company's claims as unsubstantiated. This judgment was subject to appeal within fifteen days.

No appeal was lodged so the judgment entered into force.

On 26 April 2002 the Convention entered into force in respect of Armenia.

On 2 February 2004 an advocate holding a special licence lodged an appeal in cassation (վճռաբեկ բողոք) with the Court of Cassation (ՀՀ վճռաբեկ դատարան) on behalf of the applicant company, seeking to reopen the proceedings on the ground of newly discovered circumstances. As a newly discovered circumstance, the advocate submitted an independent expert opinion prepared on 17 September 2003.

On 27 February 2004 the Court of Cassation dismissed the appeal, finding that the piece of evidence adduced could not be regarded as a newly discovered circumstance having vital importance for the case.

Article 221.4 of the Code of Civil Procedure of 1999 (ՀՀ քաղաքացիական դատավարության օրենսգիրք) provides that a judgment of the Commercial Court enters into force within 15 days from the date of its pronouncement.

According to Articles 222, 223 and 224, judgments of the Commercial Court, which have entered into force, may be reviewed through proceedings in cassation on the basis of an appeal lodged by the Prosecutor General of Armenia and his Deputies, or by advocates holding a special license and registered with the Court of Cassation. These appeals are examined by the Court of Cassation.

Article 225 provides that an appeal in cassation can be brought on points of law and procedure, or on the ground of newly discovered circumstances. There is no time-limit for lodging an appeal on the ground of newly discovered circumstances.

According to Article 228, the proceedings shall be reopened on the ground of newly discovered circumstances having vital importance for the case which the parties were not or could not be aware of or which the parties were aware of but were unable to present them in court for valid reasons.

According to Articles 235 and 236, the Court of Cassation reviews the judgments within the grounds presented in the appeal. The Court can either dismiss the appeal, or otherwise quash the whole or part of the judgment and remit the case for a new examination.


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant was born in 1978 and lives in Kyiv.

In February 2005 the applicant left Belarus for Ukraine. From that time on she has been residing in Ukraine with her family.

On 10 March 2006 the Deputy Prosecutor General of Belarus issued an arrest warrant in respect of the applicant on suspicion of aggravated trafficking in human beings and organised crime.

On 26 July 2007 the applicant was apprehended in Kyiv under an international arrest warrant with a view to her extradition issued on 21 June 2007 and a Belarus Interpol Bureau letter of 15 July 2007 to the Ukrainian authorities informing them that the applicant was on the territory of Ukraine and requesting them to find and arrest her with a view to extradition. She was thus separated from her newly-born child, who was exactly one month old when the applicant was apprehended.

On 27 July 2007 the Golosiyivskyy District Court of Kyiv (“the District Court”) ordered the applicant's detention for forty days pending an official request for her extradition to Belarus. On 6 August 2007 the Kyiv City Court of Appeal upheld that decision.

On 29 July 2007 the applicant applied for refugee status in Ukraine.

On 27 August 2007 the General Prosecutor's Office of Ukraine (“the GPO”) received an official request from the Deputy Prosecutor General of Belarus for the applicant's extradition to Belarus with the aim of prosecuting her for aggravated trafficking in human beings and organised crime. The request contained detailed information about criminal acts of which the applicant was suspected by the Belarusian authorities, as well as assurances that the applicant would be prosecuted only for these crimes, that she would be free to leave Belarus after her trial and serving a sentence, and that she would not be deported or expelled to any third country without Ukraine's consent. No decision was taken with regard to the above request.

On 3 September 2007 the District Court ordered the applicant's continued detention without a fixed time-limit and until the GPO had decided on her extradition to Belarus. The Kyiv City Court of Appeal upheld this decision on 13 September 2007.

On 12 September 2007 the President of the Chamber decided to apply Rule 39, indicating to the Government that the applicant should not be extradited to the Republic of Belarus.

By letter of 21 September 2007, the Belarusian General Prosecutor's Office sent to the First Deputy Prosecutor General of Ukraine assurances that, if extradited to Belarus, the applicant would not be subjected to any kind of treatment prohibited by Article 3 of the Convention, that she would receive a fair trial, and that the death penalty would not be applied in her case.

On 5 March 2008 the State Migration Committee (“the Committee”) granted the applicant refugee status.

On 6 March 2008 the applicant received a refugee certificate.

On 7, 14 and 21 March 2008 the applicant's lawyer lodged applications for her release with the District Court on the ground that the applicant had refugee status and therefore could not be extradited.

By letters of 12 and 31 March 2008, the District Court refused to consider the applications for release on the ground that there was a final and binding court decision ordering the applicant's detention pending extradition and that it was the prosecution service that was competent to decide whether there were grounds or not for the applicant's detention.

On 18 April 2008 the GPO lodged an objection with the Committee against its decision of 5 March 2008. The objection had the effect of suspending the Committee's decision.

On 5 May 2008 the Committee rejected the GPO's objection and confirmed its decision of 5 March 2008.

On 20 May 2008 the GPO made an objection to the decision of the Committee on the applicant's refugee status to the Regional Administrative Court of Kyiv (“the Kyiv Court”) and requested the suspension of the Committee's decision.

On 26 June 2008 the applicant's lawyer lodged an application for the applicant's release with the Kyiv Court under the Code of Administrative Justice. No decision was taken on this application.

On 9 July 2008 the Kyiv Court rejected the request for suspension of the Committee's decision pending the administrative proceedings.

On 21 July 2008 the Kyiv Court rejected the GPO's objection and confirmed the lawfulness of the Committee's decision of 5 March 2008.

On 23 December 2008 the Kyiv Administrative Court of Appeal (the Court of Appeal) overruled the decision of 21 July 2008 and cancelled the Committee's decision of 5 March 2008.

On 28 January 2009 the Highest Administrative Court decided to initiate the examination of the administrative case in cassation and suspended execution of the decision of 23 December 2008.

On 23 February 2009 the General Prosecutor's Office of Belarus informed their Ukrainian counterpart that the maximum eighteen-month time-limit for the applicant's pre-trial detention had expired and therefore her detention was replaced by an obligation not to abscond. On this ground the Belarus authorities asked the GPO to leave the extradition request without consideration and to release the applicant.

On 25 February 2009 the Deputy Prosecutor General ordered the applicant's release on the basis of the above request of the Belarus General Prosecutor's Office. On the same day the applicant was released.

On 1 April 2009 the Highest Administrative Court upheld the decision of the Court of Appeal.

Article 248¹ of the Code (Chapter 31-A) provided in so far as relevant:

“Every citizen has the right to apply to court ... with an application, should he consider that a decision, action or inactivity of a public authority, legal person or official during the exercise of their administrative functions has violated his rights or freedoms”

The relevant provisions of the Code read as follows:

Section 2

Task of the administrative justice system

“1. The task of the administrative justice system is the protection of the rights, freedoms and interests of physical persons, and the rights and interests of legal entities in the field of public law relations from violations by public authorities ...

Any decisions, actions or inactivity of public authorities can be appealed against in administrative courts, except for cases in which the Constitution and laws of Ukraine foresee a different procedure of judicial appeal against such decisions, actions or inactivity ...”

Section 17

Competence of the administrative courts in deciding administrative cases

“1. The competence of the administrative courts shall cover:

3) disputes between public authorities ...

4) disputes following an application by a public authority in the situations set forth by the law...

The competence of the administrative courts shall not cover public law cases:

that shall be decided under the criminal justice procedure ...”

Section 117

Securing an administrative claim

“1. The court, upon the request of the claimant or of its own motion, can render a ruling on taking measures for securing an administrative claim ...

The lodging of the administrative claim or the initiation of administrative proceedings in the case does not suspend the challenged decision of the public authority, but the court may, in order to secure the claim,, suspend the decision by a ruling to that effect ...

A ruling on securing an administrative claim can be appealed against. An appeal against the ruling does not stop its enforcement, and does not prevent further examination of the case.”

Final and transitional provisions

“...7. After the entry into force of this Code applications and complaints that derive from administrative law relations ... (Chapters 29-32 of the Code of Civil Procedure, 1963) ... shall be considered under the procedure established by this Code ...”

The relevant provisions of the Prosecution Service Act provided:

Section 19

“Supervision over the compliance and application of laws

“Supervision over the compliance and application of laws covers:

1) compliance of acts issued by all bodies, enterprises, institutions, organisations and public officials with the requirements of the Constitution of Ukraine and laws in force ...”

Section 20

Competences of the prosecutor

“...Having established a violation of the law the prosecutor or his deputy shall be competent:

1) to make objections to acts of ... ministries and other central bodies of the executive power ...”

Section 21

Objection by the Prosecutor

“An objection to an act which contradicts the law may be submitted by the prosecutor or his or her deputy to the body that issued the act in question or to a higher body ...

An objection by the prosecutor shall have the effect of suspending the act objected to, and shall be subject to compulsory consideration by the relevant body ... within ten days of its receipt. The prosecutor shall be informed of the results of the examination of his/her objection within the same time-limit.

Should the objection be rejected ... the prosecutor may apply to a court to have the act declared unlawful. An application to a court may be lodged within fifteen days of receipt of the notification of rejection of the objection ... The lodging of such an application shall suspend the legal act in question.”

Section 3 of the Act read:

Section 3

Prohibition of expulsion or forced return of a refugee to the country from which he came and where his life or freedom is endangered

“No refugee may be expelled or forcibly returned to a country where his or her life or freedom is threatened for reasons of race, religion, ethnicity, nationality, membership of a particular social group or political opinion.

No refugee may be expelled or forcibly returned to a country where he or she may suffer torture and other severe, inhuman or degrading treatment or punishment, or to a country from where the refugee may be expelled or forcibly returned to a country where his or her life or freedom is threatened for reasons of race, religion, ethnicity, nationality, membership of a particular social group or political opinion.

This Article shall not apply to refugees convicted of a serious crime in Ukraine.”

The relevant provisions of the Act provide:

Section 1

“Under the provisions of this Law a citizen is entitled to compensation for damage caused by:

(1) unlawful conviction, unlawful indictment, unlawful arrest and detention, unlawful conduct of a search, seizure of property during the investigation and trial, unlawful removal from work (office) and other procedural actions that interfere with citizens' rights;

(2) unlawful imposition of administrative arrest or correctional labour, unlawful confiscation of property, unlawful imposition of a fine;

(3) the unlawful conduct of search and seizure activities foreseen by the Laws of Ukraine “on Search and Seizure Activities”, “on Organisational Legal Basis for Combating Organised Crime” and other legal acts.

In the cases indicated in part 1 of this Section, the damage sustained shall be compensated in full irrespective of the guilt of the officials of the bodies of inquiry, the pre-trial investigative authorities, prosecutors and courts.”

Section 2

“The right to compensation for damage in the amount of and in accordance with the procedure established by this Law shall arise in cases of:

(1) acquittal by a court;

(1-1) the finding in a judgment by a court or other decision by a court (except a ruling or decision of a court on remittal of the case for further investigation or for retrial) of the fact of unlawful indictment, unlawful arrest and detention, unlawful conduct of search, seizure of property during the investigation and trial, unlawful removal from work (office) and other procedural actions that interfere with citizens' rights, unlawful conduct of search and seizure activities;

(2) the termination of a criminal case on the grounds of the absence of proof of the commission of a crime, the absence of corpus delicti, or a lack of evidence of the accused's participation in the commission of the crime;

(3) the refusal to initiate criminal proceedings or the termination of criminal proceedings on the grounds stipulated in paragraph 2 of part 1 of this section;

(4) the termination of proceedings for an administrative offence.

The right to compensation for damage caused by the search and seizure activities indicated in section 1 of this Law, conducted prior to the institution of criminal proceedings, arises in the cases set out in paragraph 1(1) of part 1 of section 1, or in cases in which no decision was taken on instituting criminal proceedings within six months of the conduct of such activities, as a result of which such activities ... were cancelled.”

Section 3

“In the cases referred to in section 1 of this Law the applicant shall be compensated for ...

(5) non-pecuniary damage.”

Section 4

“... Compensation for non-pecuniary damage shall be awarded in cases in which unlawful actions by bodies of inquiry, pre-trial investigative authorities, prosecutors and courts have caused non-pecuniary losses to a citizen, led to disruption of his or her usual relations and required additional efforts for the organisation of his or her life.

Non-pecuniary damage shall be defined as the suffering caused to a citizen due to physical or psychological influence which resulted in a deterioration or deprivation of his or her ability to act in accordance with his or her usual habits and wishes, a deterioration of relations with the people around him or her, and other adverse effects of a non-pecuniary nature.”

Other relevant domestic law and practice is summarised in the judgments Soldatenko v. Ukraine (2440/07, §§ 21-29 and 31, 23 October 2008) and Svetlorusov v. Ukraine (2929/05, § 32-34, 12 March 2009).


Violation of Art. 5-3;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses award - Convention proceedings

The applicant, who was born in Beirut (Lebanon) in 1958, is at present detained in Rennes Prison (Ille-et-Vilaine). In December 1990 he travelled to Lebanon, where he married a young Lebanese woman, who became his second wife.

On 21 June 1991 the body of a young woman was retrieved from the harbour mouth at Les Sables d’Olonne (Vendée). She had been gagged, her teeth had been broken and she had head wounds. The body bore the marks of strangulation, had burns on the chest and thighs and had been weighted down with a weight of about twenty kilograms. A post-mortem carried out the same day by Drs Nadau and Rocard revealed, inter alia, that the cause of death had been asphyxia and that the victim had received a blow to the head before she died.

On 25 June 1991 a murder inquiry was opened and the investigating judge ordered an expert report on the body. The report, by a Professor Rudler, was filed on 29 October 1991.

Having been unable to identify the body, the investigators circulated this information through Interpol. On 5 November 1991 the Interpol office in Beirut informed them that the applicant’s wife’s parents, who were worried because they had had no recent news of their daughter, had reported her disappearance to the Lebanese authorities.

It was subsequently discovered that, by letters of 21 August 1991, the applicant had reported his wife’s disappearance to the municipal services of Nuaille (Maine-et-Loire) and the Vezins gendarmerie. When he was interviewed on 14 September 1991 by gendarmes belonging to that brigade he had stated that his wife had left him on 18 June 1991 to join her brother in Switzerland, taking with her some money and objects of value that she had stolen from him. On 4 October 1991 he had also filed a missing person report with the prefectoral authorities.

Tests carried out on the body identified the victim as the applicant’s wife.

The applicant was taken into police custody on 4 December 1991. When interviewed by the police conducting the inquiry he first asserted that on 18 June 1991 he had dropped his wife off at Angers station, where she had caught a train to Paris before travelling to Switzerland.

He subsequently made, in substance, the following statement: on 19 June 1991, after a domestic quarrel, the applicant’s wife had attempted to take her own life by swallowing medicines and then dousing herself with household bleach, after which she had hanged herself with a clothes line; fearing the reactions of his wife’s family, Mr I.A. had cut down her body, pushed her tongue back into her mouth with a piece of cloth, wrapped the body in a sheet and blanket, tied and weighted it and then placed it in the boot of his car before driving to Les Sables d’Olonne, where, next day, after waiting for nightfall, he had thrown it into the sea.

As the investigation proceeded, it revealed the inconsistencies of this version of events. For example, the applicant’s wife had not doused herself with bleach nor had she swallowed medicines; she had not been hanged but strangled; and it was before she died that the piece of cloth had been placed in her mouth and the burns found on her body and the injuries to her teeth had been caused.

On 6 December 1991 the Sables d’Olonne investigating judge charged Mr I.A. with murder and made a provisional order for his imprisonment, committing him to prison for three days. On 9 December 1991 the judge made an order for his detention on remand worded as follows:

Whereas the constraints of judicial supervision are inadequate with regard to the functions set out in Article 137 of the Code of Criminal Procedure;

Whereas the accused’s detention on remand is necessary

to preserve public order from the disturbance caused by the offence,

to protect the accused,

and to ensure that the accused remains at the disposal of the judicial authorities,

in that, as the case concerns a serious crime, and in the light of what the investigations conducted hitherto have revealed, public order has been disturbed, in particular by the circumstances of the discovery of the body;

in that the accused belongs to a Lebanese community, so that he must be protected from the risk of revenge attacks by the victim’s family;

and in that there is a need to ensure that he remains at the disposal of the judicial authorities, as he may abscond to the Middle East at any time.”

On 10 December 1991 the investigating judge appointed a Professor Pannier and a Dr Bureau to produce an expert report on the lesions found on the victim’s body (their report was filed on 3 June 1992).

On the same day, and again on 16 December 1991, the judge interviewed one of the applicant’s cousins, who had come to see him of his own accord.

On 19 December 1991 the investigating judge appointed a Professor Doutremepuich to produce an expert report on vaginal and anal swabs taken from the victim.

On 20 December 1991 the investigating judge held a reconstruction of the crime, which was attended, among others, by the doctor who had performed the post-mortem, who was appointed expert with the special task of verifying the compatibility of the versions of events given by the accused with the results of the post-mortem (his report was filed on 10 January 1992).

On the same day the investigating judge questioned Mr I.A.

From 20 December 1991 to 12 February 1992, acting on instructions received on 18 December 1991, the Angers Regional Criminal Investigation Department (SRPJ) monitored the telephone line of a Mr V. and a Miss B., two of the applicant’s acquaintances.

On 7 January 1992 the investigating judge appointed Professor Doutremepuich to examine the rag that had been used to gag the applicant’s wife. On 8 January he appointed two psychologists, a Mrs Griffon and a Mr Troadec, to produce medico-psychological reports on the applicant and a Dr Pennec to produce a psychiatric report (the reports of the first two experts mentioned were filed on 2 April 1992, that of the third expert on 8 April 1992).

On 16 January 1992, acting on instructions received on 6 December 1991, a detective from the Angers SRPJ interviewed the applicant’s first wife.

The investigating judge took evidence from Mr I.A.’s cousin as a civil party on 29 January 1992. On 12 February he took evidence from the victim’s brother and sister-in-law – they had previously been interviewed on 5 February by the Angers SRPJ, acting on instructions of 20 December 1991; on 14 February and 6 March 1992 he confronted them with the applicant.

On 18 March 1992, acting on instructions of 6 March, the Angers SRPJ took a sample of hair from the body.

On 18 and 20 March 1992, acting on instructions of 20 December 1991, the Angers SRPJ took statements from Mr V. and Miss B., and from a woman with whom Mr I.A. had been carrying on a sexual relationship before his arrest. The latter declared in particular that the applicant had informed her of his intention of leaving France for Australia as soon as his house was sold.

On 31 March 1992 the investigating judge visited the scene of the crime.

On 15 April 1992 he again interviewed the applicant’s cousin.

On 30 April 1992 he took a statement from the applicant’s ex-wife.

On 21 May 1992 the investigating judge confronted the applicant’s cousin with Mr V. and Miss B., then interviewed Mr I.A., asking him in particular whether he wanted any special expert examinations of the victim’s body to be made. On the basis of instructions given the same day, Mr V. and Miss B. were again interviewed by the Angers SRPJ.

On 26 May the investigating judge held a confrontation with the victim’s brother and sister-in-law.

On 29 May 1992 the judge refused an application for release lodged by Mr I.A. in an order worded as follows:

Whereas the accused’s detention on remand is necessary

to preserve public order from the disturbance caused by the offence,

to protect the accused,

and to ensure that the accused remains at the disposal of the judicial authorities,

in that the offence gravely disturbed public order, being a serious crime; in that further inquiries are necessary; and in that it is necessary to ensure that the accused remains at the disposal of the judicial authorities on account of the fact that, being a Lebanese national, he is likely to flee the jurisdiction, a step which it seems he considered taking shortly before his arrest.”

On appeal by the applicant, the Indictment Division of the Poitiers Court of Appeal upheld the above order in a judgment of 16 June 1992, on the following grounds:

“Having regard to the penalty to which the accused would be liable if found guilty and the fact that he has family ties in Lebanon, it is to be feared that he might seek to evade justice by absconding to that country. It is obviously necessary to continue his detention to prevent him from doing so.”

On 10 June 1992 the investigating judge held a confrontation between the applicant and the three people he had interviewed on 21 May.

On the basis of instructions given on 17 June 1992, a witness was interviewed by the Angers SRPJ.

On 10 July 1992 the investigating judge confronted Mr I.A.’s cousin with his ex-wife.

On 14 September 1992 the investigating judge refused an application for release lodged by Mr I.A. on 9 September in an order worded as follows:

“Whereas the accused’s detention on remand is the only way

to preserve the evidence,

and to prevent pressure being brought to bear on witnesses or the victim,

in that the accused has shown particular duplicity in the organisation of his lies; in that he has colluded with third parties (ex-wife and friend); and in that new evidence has turned up during the investigation (discovery of allegedly stolen jewellery);

to protect the accused,

and to ensure that he remains at the disposal of the judicial authorities,

in that public order has been disturbed in the extreme on account of the international, family implications to which the accused himself refers in his application; and in that the accused himself admits to living in fear ‘of our frequently barbaric and unjust customs’, his continued detention is the only way to ensure his protection and to avoid all risk of his absconding in the event of his release.”

On 16 October 1992 the accused was served with a copy of the expert report of Professor Pannier and Dr Bureau and was informed that he had fifteen days to submit observations or request an additional expert report or second opinion; he was then interviewed by the investigating judge.

He was again questioned by the investigating judge on 28 October 1992.

By an order of 29 October 1992 the investigating judge appointed an expert to carry out “an inquiry into the accused’s personality, his financial circumstances, and his family and social background, and to provide any kind of information about his pattern of behaviour”. The report was filed on 14 January 1993.

By an order of 17 November 1992, which reproduced the wording of the order of 14 September 1992, the investigating judge refused an application for release lodged by the applicant.

On 25 November 1992 the investigating judge interviewed the applicant’s cousin.

On 4 December 1992 the judge extended for one year the applicant’s detention on remand, by means of the following order:

“Whereas the accused’s detention on remand is the only way to prevent collusion between him and his accomplices,

in that the circumstances of the victim’s death and the barbaric acts which she suffered remain obscure; in that it is necessary to try to ascertain the accused’s motives, in case this was not just a simple private problem but formed part of a much more general context with Lebanese links; and in that it is therefore possible that the accused did not act alone;

Whereas the accused’s detention on remand is necessary

to preserve public order from the disturbance caused by the offence,

to protect the accused,

in that the case file shows that there is a very serious risk of reprisals; in that the very special circumstances of the victim’s death (barbarity) have been partly responsible for a lasting disturbance of public opinion; and in that it is necessary, in view of the penalty to which the accused is liable, and his foreign origin, to ensure that he remains at the disposal of the judicial authorities.”

On 8 December 1992 the investigating judge visited the scene of the crime.

On 13 January 1993 the investigating judge refused another application for release from the applicant, by an order drafted in the same terms as the order of 4 December 1992 (the only major difference being that it omitted to mention that detention was necessary for the protection of the accused). He also refused, on 5 March 1993, an application submitted on 2 March, on the ground that detention was the only way to prevent pressure being brought to bear on witnesses and was necessary to preserve public order from the disturbance caused by the offence, to protect the accused and to ensure that he remained at the disposal of the judicial authorities.

On 16 March 1993 the investigating judge asked a Dr Lavault to produce an additional expert report to verify whether the burns found on the victim’s body had been caused before death.

On 24 March 1993 he served Mr I.A. with the conclusions of the expert report on the rag that had been used to gag the victim, informed him that he had fifteen days to submit observations or request an additional expert report or second opinion and then interviewed him.

By an order of 2 April 1993 the investigating judge refused a new application for release lodged by the applicant on the ground that detention was necessary to preserve public order from the disturbance caused by the offence, to protect the accused and to ensure that he remained at the disposal of the judicial authorities. More specifically, the order stated:

“Whereas the offence seriously disturbed public order, since it involved the death of a young woman in particularly barbaric circumstances; and whereas this disturbance, which extends beyond French territory, both the victim and the offender being of Lebanese origin, has not ceased to this day;

Whereas it is necessary to keep at the disposal of the judicial authorities a person whose life would be endangered by his release, given the indignation and distress that such a measure could not fail to provoke among the victim’s relatives, as they would not be able to understand or accept it, although they have hitherto placed their trust in French justice;

And whereas, lastly, the investigation will in all probability be concluded when the inquiries currently in progress have been completed, and the transmission of the file to the public prosecutor’s office can be expected to take place by the end of June.”

On appeal by Mr I.A., the Indictment Division of the Poitiers Court of Appeal upheld this order in a judgment of 21 April, on the following grounds:

“Having regard to the penalty to which the accused would be liable if found guilty and the fact that he has family ties in Lebanon, it is to be feared that he might seek to evade justice by absconding to that country. It is obviously necessary to continue his detention to prevent him from doing so.

It is also necessary for the purposes of the inquiries currently in progress, in particular to avoid all risk of collusion with witnesses and to prevent pressure being brought to bear on them, as [I.A.]’s conduct gives reason to fear.”

On 26 April 1993 the investigating judge appointed Mrs Griffon to conduct a medico-psychological and psychiatric examination of the applicant (her report was filed on 8 July 1993).

In the night of 4 to 5 May 1993 a burglary was carried out at the applicant’s home, at which official police seals had been placed. On 6 May the vehicle used to move the body, which had been stolen during the burglary, was found in the River Maine at Angers.

On 10 May 1993 the investigating judge refused an application for release submitted by the applicant on 5 May, by an order worded as follows:

“Whereas the accused’s detention on remand is necessary

to preserve public order from the disturbance caused by the offence,

and to ensure that the accused remains at the disposal of the judicial authorities,

in that there is strong evidence that [I.A.] is guilty of murder; and in that it is necessary to ensure that he remains at the disposal of the judicial authorities and to forestall any risk of pressure being brought to bear on witnesses.”

On 28 May 1993 the investigating judge arranged a confrontation between the applicant, his cousin and one of the experts previously appointed (Dr Nadau); they discussed the question whether the lesions found on the victim’s body had been caused before death.

On 4 June 1993 the investigating judge refused an application for release lodged by Mr I.A. on 1 June, on the ground that his detention was the only way to prevent pressure being brought to bear on witnesses and was necessary to preserve public order from the disturbance caused by the offence and to ensure that the accused would remain at the disposal of the judicial authorities.

He did so again on 18 and 25 June 1993 by means of two orders worded as follows:

“Whereas there is strong evidence that [I.A.] is guilty of murder;

Whereas from the time of his wife’s death until his arrest he showed particular duplicity, attempting to set his family against the young woman’s family by making particularly serious false allegations;

Whereas it is to be feared that [I.A.] will abscond to a country where he has family ties;

Whereas it is necessary to ensure that he remains at the disposal of the judicial authorities;

Whereas his detention on remand is also necessary in order to discover the truth, since [he] has continually employed stratagems designed to enable him to evade his responsibilities.”

On 9 July 1993 the investigating judge refused another application for release, dated 5 July, on the ground that the applicant’s detention was necessary to preserve public order from the disturbance caused by the offence, to protect the accused and to ensure that he remained at the disposal of the judicial authorities.

On 23 July he refused a further application from the applicant, by means of an order with exactly the same wording as those of 18 and 25 June.

On 13 and 23 August, 3 and 14 September, 15 and 29 October and 5 November 1993 he refused applications lodged respectively on 9, 24 and 31 August, 9 September, 11 and 25 October and 2 November. These orders generally stated that Mr I.A.’s detention was the only way to prevent pressure being brought to bear on witnesses and was necessary to preserve public order from the disturbance caused by the offence, to protect the accused and to ensure that he remained at the disposal of the judicial authorities. They also pointed out that there was “strong evidence” that Mr I.A. was “guilty of murder”, that “from the time of his wife’s death until his arrest” he had shown “particular duplicity”, that it was “to be feared that he [would] abscond to a country where he [had] family ties” and that it was therefore necessary “to ensure that he remained at the disposal of the judicial authorities so as not to create any risk of the inquiries needed to reveal the truth being impeded”.

In a judgment of 23 November 1993 the Indictment Division of the Poitiers Court of Appeal upheld the order of 5 November, on the grounds that “regard being had to the penalty for the offence concerned, there [was] a strong risk that [I.A.] would abscond to his country of origin before he could be brought to trial” and that “his continued detention [was] the only way to guard against that risk”.

On 9 November 1993 a Mr A., one of the three people who had carried out the burglary of 4 May, was interviewed by the Angers SRPJ. He stated that the purpose of the burglary had been to remove evidence and take away Mr I.A.’s vehicle.

On 22 November 1993, when he was questioned by the investigating judge about his relations with the people who had carried out the burglary at his home, the applicant denied any involvement.

On the same day the judge extended Mr I.A.’s detention on remand for one year by an order which stated: “The accused must be kept at the disposal of the judicial authorities, since the serious nature of the offence and the circumstances of the victim’s death have very gravely disturbed public order both in France and in Lebanon.”

A summary report drawn up by the Angers SRPJ and completed on 6 December 1993, concerning in particular the inquiries conducted after the burglary of 4 May, was communicated to the investigating judge.

On 7 December 1993 the investigating judge interviewed Mr A., who confirmed his statement of 9 November.

By two orders of 10 and 17 December 1993, which cited the same grounds as those of 13 and 23 August, 3 and 14 September, 15 and 29 October and 5 November 1993, the investigating judge refused applications for release lodged by the applicant on 6 and 13 December 1993.

On 7 and 21 January and 4 February 1994 the investigating judge refused applications for release lodged on 4, 18 and 31 January, by means of orders worded as follows:

“Whereas the accused’s detention on remand is necessary

to preserve public order from the disturbance caused by the offence,

to protect the accused,

and to ensure that the accused remains at the disposal of the judicial authorities,

in that there is strong evidence that [I.A.] is guilty of murder; in that from the time of his wife’s death until his arrest he showed particular duplicity; in that it is to be feared that he will abscond to a country where he has family ties; and in that it is therefore necessary to ensure that he remains at the disposal of the judicial authorities.”

The orders of 7 January and 4 February stated in addition: “The accused’s detention on remand is the only way to prevent pressure being brought to bear on witnesses.” The second of these did not refer to the need to “protect the accused”, but added that detention on remand was “the only way to preserve the evidence”.

On 7 February 1994 the investigating judge questioned Mr I.A.

On the same day the Angers SRPJ interviewed a Mr B., one of the three people who had carried out the burglary of 4 May 1993. Subsequently, the police lost trace of him.

By orders of 14 and 22 February 1994 the investigating judge refused applications for release lodged on 9 and 17 February. These orders stated that the applicant’s detention on remand was the only way “to preserve evidence [and] prevent collusion between the accused and his accomplices” (order of 14 February) and “to prevent pressure being brought to bear on witnesses” (order of 22 February). For the rest, they repeated the grounds cited in paragraph 49 above.

By three orders of 4, 11 and 18 March, the investigating judge refused applications for release lodged on 28 February and 7 and 14 March. The first and third of these orders stated that the applicant’s detention on remand was “the only way” to “preserve evidence” and to “prevent pressure being brought to bear on witnesses”; the second mentioned only the second of these grounds. For the rest, they repeated the grounds cited in paragraph 49 above, apart from the fact that the first two made no mention of the necessity of detention for the protection of the accused.

In the meantime, on 28 February 1994, an investigating judge from the Angers tribunal de grande instance had been appointed to investigate the case, since the investigation conducted up to that point had shown that the crime had been committed within the territorial jurisdiction of that court. On 4 March 1994 the new investigating judge asked for the file to be passed on to him. On 18 March 1994 the investigating judge who had handled the case until then relinquished his charge to the new judge.

On 6 June 1994 the new investigating judge questioned Mr I.A., who said that he wished to stand by his previous statements.

On 16 and 23 September 1994 the judge refused applications for release lodged by the applicant.

The first of these orders was worded as follows:

“Whereas the detention on remand of the person under investigation is the only way

to preserve evidence,

and to prevent pressure being brought to bear on witnesses,

in that the person under investigation stands accused of murdering his wife, which he denies; in that there is, however, evidence against him that must be examined; in that, moreover, it appears … from the file that he incited others to burgle his home with a view to the destruction of documents that could have been used as evidence; in that his release or placement under judicial supervision would not be, at the present stage of the investigation, conducive to discovery of the truth;

Whereas the detention on remand of the person under investigation is necessary

and to ensure that the person under investigation remains at the disposal of the judicial authorities,

in that there is strong evidence that [I.A.] is guilty of murder, an offence which, by its nature, causes a manifest and lasting disturbance of public order; in that the person under investigation has shown duplicity; and in that, having ties with a foreign country, it is to be feared that he would abscond if released.”

The second order read as follows:

to preserve evidence,

and to prevent collusion between the person under investigation and his accomplices,

in that further inquiries are needed to uncover the full truth; in particular, light needs to be shed on the circumstances in which the burglary of the home of the person concerned – the scene of the crime – was organised and carried out;

to preserve public order from the disturbance caused by the offence,

and to prevent any repetition of the offence,

in that, as the case file stands, there is strong evidence that the person concerned killed his wife; in that this is obviously an objectively serious offence which has accordingly caused a manifest and lasting disturbance of public order; in that the conduct of the person concerned during the investigation and the ties he has with a foreign country give reason to fear that he might seek to evade justice and his responsibilities; and in that the person concerned is already due to be examined on 11 October next.”

On 11 October 1994 the applicant was examined by the investigating judge.

On 18 October and 21 and 25 November 1994 the investigating judge refused applications for release of 13 October and 17 and 22 November by three orders drafted in exactly the same terms as the order of 23 September (apart from the reference to the examination of 11 October).

On 28 October 1994 the investigating judge instructed the director of the Angers SRPJ to find and interview a Mr F. and Mr B., two of the three people who had carried out the burglary of 4 May 1993. Mr F. was traced on 29 November 1994: he was in prison under the assumed identity of his own brother.

On 3 November 1994, acting on instructions of 24 October, the Cholet gendarmerie removed the official police seals from Mr I.A.’s house.

On 30 November 1994 the investigating judge extended the applicant’s detention on remand for one year, by an order which read:

to preserve evidence,

in that further inquiries are needed to uncover the full truth; in particular, light needs to be shed on the circumstances in which the burglary of the home of the person concerned – the scene of the crime – was organised and carried out; and in that the police have been given instructions to try to apprehend the last of the men involved in the burglary;

to ensure that the person under investigation remains at the disposal of the judicial authorities,

and to preserve public order,

in that, as the case file stands, and despite the denials of [I.A.], there is strong and consistent evidence that he killed his wife in particularly odious circumstances; in that this is obviously an objectively serious offence which has accordingly caused a manifest and lasting disturbance of public order; in that the conduct of the person under investigation during both the police inquiries and the judicial investigation and the ties he has kept with his country of origin give reason to fear that he might seek to evade justice and his criminal responsibility.”

On 2 December 1994 the investigating judge refused an application for release submitted on 28 November by an order written in the same terms as the order of 30 November.

On 5 January 1995 Mr I.A. again applied for release; this was refused by an order of 10 January 1995, on the same grounds as those set out in the orders of 30 November and 2 December 1994.

The applicant appealed on 12 January 1995, relying in particular on Article 5 § 3 of the Convention; he complained of the length of the proceedings and argued that he could not be held responsible for this, since he had not requested any step likely to prolong the investigation, nor had he used any procedural remedies capable of suspending its progress. In response, the Indictment Division of the Angers Court of Appeal upheld the order in a judgment of 25 January 1995, holding:

Although the killing of a woman by her husband is not generally a complex matter, it should be noted in the present case that this killing has been denied and presented as a suicide by hanging, just as the acts of torture and barbarity suffered by the victim during the days which preceded her death have been denied, but above all that the motive for this crime, without knowing which it is not possible to assess the perpetrator’s responsibility, has been carefully concealed.

The silence constantly maintained by the person under investigation, the inertia he has shown in order to prevent the investigation moving rapidly forward and the need to conduct inquiries into the burglary committed at his home, in which one of his fellow prisoners participated, which was designed to destroy documents and the vehicle used to move the body, and which could have been carried out at the behest of [I.A.], obliged the investigating judge to order many expert opinions and to conduct inquiries which cannot be regarded as accessory in order to uncover the truth. These have been the cause of the protractedness of the proceedings and the detention of which [I.A.] complains.

The risk that [I.A.] might bring pressure to bear on witnesses of the offences committed during the days which preceded the victim’s death, in concert with the accomplices he may well have had, and the risk that he might abscond to Lebanon or another country where he could be assisted by members of the large community of Lebanese emigrants make it essential for his detention to continue, since judicial supervision in this case is not a measure which can perform the functions set out in Article 137 of the Code of Criminal Procedure.”

The applicant appealed on points of law against the above decision, relying on Article 5 § 3 of the Convention in particular. He submitted that his refusal to admit the offence which he stood accused of, and which he denied having committed, could not amount to inertia on his part; that the Court of Appeal had not explained how the need to conduct inquiries into the burglary carried out at his home prevented the investigation from proceeding in connection with the events which had led to his detention on remand; and that it had not given detailed reasons for its decision.

In a judgment of 22 May 1995, the Court of Cassation dismissed this appeal.

In the meantime, on 18 January 1995, acting pursuant to the instructions of 28 October 1994 and further instructions given on 5 January 1995, the Angers SRPJ had interviewed Mr F., who had confirmed Mr A.’s statement to the effect that the burglary at the applicant’s home had been carried out at his behest with the aim of ensuring that certain documents disappeared.

On 10 February 1995 the investigating judge had questioned Mr I.A. about the circumstances of the burglary; he had denied being behind it.

On 24 March 1995 the judge had instructed the Metz gendarmerie by warrant to find out Mr A.’s address so that he could be served with a summons to appear before him at his chambers. The warrant had been returned on 6 April 1995 and the summons had been served on 5 May.

On 31 May 1995 the investigating judge confronted the applicant with Mr A. and Mr F. All three confirmed their previous statements about the burglary.

On 29 June 1995 the investigating judge informed Mr I.A. that his case file was to be communicated to the public prosecutor in twenty days’ time, after which he would no longer be able to request additional investigative measures.

On 19 July 1995 the applicant requested the investigating judge to order such measures; he asked for an international letter of request to be issued asking for inquiries to be conducted in Lebanon about the victim’s personality and an assessment made of whether she had suicidal tendencies. He also asked for three expert opinions to be ordered to describe the system of marriage and divorce in Lebanon and to explain the reasons why ethanol had been found in the victim’s body, the different nature of the strangulation marks found, what happened to the tongues of people who had been hanged or strangled and whether the position of the arms as he had described it was what would have been expected.

By an order of 11 August 1995 the investigating judge refused these requests after noting their “particularly late” submission and the lack of justification for them.

On 19 July 1995 Mr I.A. had also applied to the Indictment Division asking it to declare the proceedings null and void.

On 26 July 1995 the investigating judge refused an application for release by an order worded as follows:

Whereas the detention on remand of the person under investigation is the only way to prevent pressure being brought to bear on the witnesses, the victim,

in that, by his attitude throughout the investigation, the person under investigation has shown how determined he is to impede the discovery of the truth and in that it is to be feared that he might bring pressure to bear on witnesses of the offences committed during the days which preceded the victim’s death;

Whereas the detention on remand of the person under investigation is necessary to preserve public order from the disturbance caused by the offence,

in that the person concerned is accused of a killing carried out in odious circumstances, which have disturbed public order in a particularly lasting manner; and in that [I.A.]’s conduct and ties outside France give reason to fear that he might seek to evade justice.”

On 31 July 1995 the investigating judge transferred the case file to the public prosecutor’s office.

On 4 August 1995 the investigating judge refused an application for release of 31 July, by an order written in exactly the same terms as the order of 26 July.

On 11 August 1995, in view of the application of 19 July in which Mr I.A. had asked the Indictment Division of the Angers Court of Appeal to declare the proceedings null and void, the investigating judge stayed the investigation pending the Indictment Division’s decision and ordered the case file to be transmitted to its president.

On the same day the investigating judge refused an application for release by an order written in the same terms as those of 26 July and 4 August.

He refused further applications on 18 and 25 August, 1 and 29 September, 20 and 26 October and 3 and 10 November 1995. These orders reproduced the reasons set out in those of 26 July and 4 and 11 August and in addition expressly mentioned that detention on remand was “necessary to ensure that the person under investigation remain[ed] at the disposal of the judicial authorities”. The last three orders aded that, by his attitude “during both the police inquiries and the investigation”, the applicant had shown his determination to “mislead the investigators and witnesses about the facts”, that the risk of pressure being brought to bear also applied to witnesses of the events that had followed the victim’s death, that the disturbance to public order caused by the offence was “exceptional” and that Mr I.A.’s conduct and ties outside France gave reason to fear that he might seek to evade justice “as he [had] tried to evade his criminal responsibility”.

By a judgment of 15 November 1995 the Indictment Division of the Angers Court of Appeal noted that the proceedings were lawful and remitted the case to the investigating judge for further investigation. On 20 November 1995 the applicant appealed on points of law.

On 17 November 1995, by an order identical to those of 26 October and 3 and 10 November, the investigating judge refused an application for release submitted on 13 November.

The prosecution’s final submissions, calling for the file to be transmitted to the Principal Public Prosecutor, were filed on 21 November 1995 and the transmission order was made on 6 December 1995.

On 24 November and 1 and 6 December 1995, by orders which reproduced the reasons set out in those of 26 October and 3, 10 and 17 November, the investigating judge refused applications for release submitted by the applicant.

On 8 December 1995 the applicant appealed to the Indictment Division of the Angers Court of Appeal against the order of 6 December. He complained of the length of his detention and the length of the proceedings.

By a judgment of 20 December 1995 the Indictment Division dismissed the appeal, on the following grounds:

[I.A.]’s lawyer cannot maintain that the investigation “has still not been closed” when the order for the file to be transmitted to the Principal Public Prosecutor was made on 6 December 1995, nor can he maintain that the Court of Cassation’s decision of 22 May 1995 dismissing his client’s appeal on points of law against the judgment of 25 January upholding an order refusing an application for release did not influence the speediness of the investigation, when he waited until 19 July before asking the investigating judge to take further steps and at the same time requested the Indictment Division to rule that the proceedings were null and void, since those applications, which do not appear to be really consistent with each other, necessarily caused some delay.

The killing of a woman by her husband is not generally a complex matter, but it should be observed in the present case, firstly, that the fact that the person under investigation has maintained a constant silence about the real circumstances of his wife’s death and the acts of torture and barbarity she suffered, the inertia he has shown in order to prevent the investigation moving rapidly forward and the need to conduct inquiries into the burglary committed at his home, in which one of his fellow prisoners participated, which was designed to destroy documents and the vehicle used to move the body, and which seems to have been carried out at the behest of [I.A.], obliged the investigating judge to order many expert opinions and to conduct inquiries which cannot be regarded as accessory in order to uncover the truth.

Secondly, the applications and appeals lodged by [I.A.] have necessarily prolonged the proceedings and the detention whose length he complains of.

As the preparatory investigation is now closed, [I.A.]’s detention on remand is necessary with a view to the definitive investigation of the facts to be conducted at his trial; to prevent him bringing pressure to bear on the witnesses of the offences committed during the days which preceded the victim’s death; to prevent him absconding to Lebanon or some other country and to guarantee that he appears in court to stand trial.

As judicial supervision would not be adequate in the present case to perform the functions set out in Article 137 of the Code of Criminal Procedure, the impugned order is upheld.”

On 5 January 1996 the applicant again submitted an application for release to the Indictment Division of the Angers Court of Appeal, which dismissed it in a judgment of 17 January 1996, on the following grounds:

Although the detention on remand he has undergone is abnormally long for a case in which a woman has been killed by her husband, as this court found in its previous judgment, the length of his detention is not attributable to any dysfunction of the judicial system but solely to the conduct of the person under investigation, who has maintained a constant silence about the real circumstances of his wife’s death and the acts of torture and barbarity she suffered, to the inertia he has shown in order to prevent the investigation moving forward and to the need to shed light on the burglary committed at his home, these inquiries and expert reports having been essential to make progress in discovering the truth in view of the attitude shown by the person under investigation.

Lastly, the applications and appeals lodged by [I.A.] have necessarily prolonged the proceedings and the detention whose length he complains of.

Regard being had to these circumstances, and to the judgment in the case of W. v. Switzerland delivered [by the European Court of Human Rights] on 26 January 1993, the period of time already spent in detention on remand has not exceeded the “reasonable time” prescribed by Article 5 § 3 of the [Convention].

As the Indictment Division is due to rule on 24 January 1996 on the charges to be brought against [I.A.], his detention on remand is necessary to prevent him bringing pressure to bear on the witnesses of the offences committed during the days which preceded the victim’s death, to prevent him absconding to Lebanon or some other country and to guarantee that he appears in court to stand trial.

By a judgment of 24 January 1996, the Indictment Division committed the applicant for trial in the Maine-et-Loire Assize Court for murder and made an order for his delivery into custody. On the same day the applicant appealed to the Court of Cassation against this judgment.

On 20 March 1996 the President of the Criminal Division of the Court of Cassation ordered the continuation of the proceedings.

On 25 June 1996 the Criminal Division dismissed the applicant’s appeals against the Indictment Division’s judgments of 15 November 1995 (see paragraph 72 above) and 24 January 1996.

At the criminal hearing on 11 December 1996 the Assize Court adjourned the case, in response to an application from the applicant, who objected to being tried in the absence of two witnesses (the victim’s sister-in-law and Mr B., one of the three people who had carried out the burglary of 4 May 1993) and an expert who had all been duly summoned.

At the end of the hearing the applicant’s lawyer submitted an application for his release, which the court dismissed after retiring to deliberate.

By a judgment of 20 March 1997 the Assize Court sentenced the applicant to life imprisonment, with ineligibility for parole during the first eighteen years.

The applicant appealed on points of law against the judgment of 20 March 1997.

By a judgment of 1 April 1998 the Criminal Division quashed the judgment of the Maine-et-Loire Assize Court and declared it null and void, on the ground that the Assize Court had misapplied Article 346 of the Code of Criminal Procedure when it ruled on an application by the applicant’s counsel for a note to be entered in the record by omitting to allow the latter or his client to address the court last. It remitted the case to the Loire-Atlantique Assize Court.

On 6 April 1998 the applicant lodged an application for release with the Indictment Division of the Rennes Court of Appeal. In a letter of 22 April, his lawyer informed the President of the Indictment Division that his client wished to withdraw the application. This was noted by the Indictment Division in a judgment of 23 April.

On 13 May 1998 Mr I.A. lodged a further application for release, which the Indictment Division of the Rennes Court of Appeal dismissed in a judgment of 28 May 1998, on the following grounds:

“[I.A.] is liable to the penalty for a serious criminal offence.

The evidence against him is particularly weighty, particularly in the light of what was revealed by examination of the victim’s body, which he admits getting rid of.

The results contradicted the successive versions of events he gave during the investigation, which he took care to adapt and adjust to each new finding made as the inquiries progressed.

Although his detention on remand has indeed lasted for a long time, its length is not attributable to any dysfunction of the judicial system, but is mainly due to the attitude shown by the accused, who, through his silence, his contradictions and his numerous applications (notably for relinquishment of jurisdiction by the investigating judge), has managed to impede the progress of the proceedings considerably and delay their outcome.

In addition to the difficulties encountered in the course of the investigation, there was the need to find time for hearings in the Assize Court, and a new appeal, which was determined more than a year after it was lodged.

In view of the particular, and indeed exceptional, circumstances, [I.A.]’s detention on remand has not exceeded the reasonable time prescribed by Article 5 of the European Convention on Human Rights.

Moreover, the defendant has not provided sufficient guarantees that he will appear in court to stand trial.

[I.A.] is of Lebanese origin.

He asserts that he wishes to live in Rennes while waiting to appear in the Loire-Atlantique Assize Court. However, the court has reason to doubt that, particularly in the light of the severity of the penalty to which he is liable.

It is to be feared that he will seek to evade justice.

The risk of the defendant disappearing without trace seems considerable.

In the light of all the above considerations, it must be ensured that [I.A.] remains at the disposal of the judicial authorities.

These particular circumstances, deduced from the evidence in the case, establish that [I.A.]’s continued detention on remand remains justified with reference to the criteria exhaustively listed in Article 144 of the Code of Criminal Procedure…”

Article 144 of the Code of Criminal Procedure provides:

“In cases involving serious crimes (matière criminelle) and lesser criminal offences (matière correctionnelle), if the sentence to which the person under investigation is liable is not less than one year’s imprisonment in the case of offences detected immediately after being committed, or two years' imprisonment in other cases, and if the constraints of judicial supervision are inadequate with regard to the functions set out in Article 137, the detention on remand may be ordered [or (Law no. 93-2 of 4 January 1993) ‘extended’]:

Where the detention on remand of the person under investigation is the sole means of preserving evidence or of preventing either pressure being brought to bear on witnesses or victims or collusion between persons under investigation and accomplices;

[2. (Law no. 93-2 of 4 January 1993) Where this detention is necessary to protect the person concerned, to put an end to the offence or prevent its repetition, to ensure that the person concerned remains at the disposal of the judicial authorities or to preserve public order from the disturbance caused by the offence;]

Detention on remand is imposed by means of an order which must set out the legal and factual grounds for the decision by reference to the provisions of Article 144 only. This order is notified orally to the accused, who receives a full copy of it upon signing the case file to acknowledge receipt (Article 145, first paragraph).

The investigating judge gives his decision in chambers, after an adversarial hearing in the course of which he hears the submissions of the public prosecutor, then the observations of the person under investigation and, if appropriate, of his counsel (Article 145, fourth paragraph).

A person under investigation on suspicion of having committed a serious crime may not in principle be detained for more than one year.

However, the investigating judge may, at the end of that period, extend detention for a period of not more than one year, by a decision given in accordance with the provisions of the first and fourth paragraphs of Article 145; that decision may be renewed in accordance with the same procedure until such time as the investigating judge makes the order terminating the investigation (Article 145-2).

An application for release may be submitted to the investigating judge at any time by the person detained or his lawyer subject to the obligations set out in Article 147; the person concerned is required to give an undertaking to attend immediately in person when a new step is taken in the proceedings if directed to do so and to keep the investigating judge informed of all his movements.

The investigating judge immediately communicates the file to the public prosecutor so that the latter can make his submissions (Law no. 93-1013 of 24 August 1993 abolished the provision which required the investigating judge to inform civil parties that an application for release had been made). The investigating judge must in principle give his decision within five days of communicating the file by an order setting out the legal and factual grounds for the decision with reference to the provisions of Article 144.

Where the above time-limit is not respected, the person detained may apply directly to the indictment division, which must reach a decision within twenty days, failing which the person detained is automatically released, unless verifications concerning his application have been ordered.

Where release is granted, it may be accompanied by judicial supervision measures (Article 148).

Release may also be requested “in any event” by any person under investigation or defendant and at any time in the proceedings.

Where application is made to a court of trial or appeal, the latter has the power to grant conditional release; before committal for trial in the assize court, and in between assize court sessions, that power belongs to the indictment division.

In the event of an appeal on points of law, and until the Court of Cassation has given judgment, the decision on the application for release is given by the court which last tried the case on the merits. If the appeal on points of law has been lodged against an assize court judgment, the decision regarding detention is given by the indictment division (Article 148-1).

The court which receives the application must in principle give judgment within ten days, if it is a court of trial, or twenty days, if it is a court of appeal. Failing that, detention on remand is terminated and the defendant, if not detained for another reason, is automatically released (Article 148-3).

An appeal against an order refusing release lies to the indictment division. It may be lodged by the person under investigation (Article 186) or by the Public Prosecutor or Principal Public Prosecutor (Article 185). Such an appeal does not have suspensive effect.

In principle the indictment division must rule within fifteen days of the appeal, failing which the person concerned is automatically released (Article 194).

When dealing with an appeal on points of law against a judgment of the indictment division concerning detention on remand, the Criminal Division of the Court of Cassation must rule within three months of receiving the case file, failing which the person concerned is automatically released (Article 567-2).