Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> LETELLIER v. FRANCE - 12369/86 [1991] ECHR 35 (26 June 1991)
URL: http://www.bailii.org/eu/cases/ECHR/1991/35.html
Cite as: (1992) 14 EHRR 83, 14 EHRR 83, [1991] ECHR 35
[New search] [Contents list] [Help]
In the Letellier case*,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention")** and
the relevant provisions of the Rules of Court***, as a Chamber
composed of the following judges:
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr R. Macdonald,
Mr R. Bernhardt,
Mr A. Spielmann,
Mr J. De Meyer,
Mr S.K. Martens,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 26 January and 24 May 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 29/1990/220/282. The first number is
the case's position on the list of cases referred to the Court in
the relevant year (second number). The last two numbers indicate
the case's position on the list of cases referred to the Court
since its creation and on the list of the corresponding
originating applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which
came into force on 1 January 1990.
*** The amendments to the Rules of Court which came into force
on 1 April 1989 are applicable to this case.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 21 May 1990,
within the three-month period laid down by Article 32 § 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated
in an application (no. 12369/86) against the French Republic
lodged with the Commission under Article 25 (art. 25) by a French
national, Mrs Monique Letellier, on 21 August 1986.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby France
recognised the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision
from the Court as to whether the facts of the case disclosed a
breach by the respondent State of its obligations under Article 5
§§ 3 and 4 (art. 5-3, art. 5-4) as regards the requirements of
reasonable time and speediness.
2. In response to the enquiry made in accordance with Rule 33
§ 3 (d) of the Rules of Court, the applicant stated that she
wished to take part in the proceedings and designated the lawyer
who would represent her (Rule 30).
3. The Chamber to be constituted included ex officio
Mr L.-E. Pettiti, the elected judge of French nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 § 3 (b)). On 24 May 1990, in the
presence of the Registrar, the President drew by lot the names of
the other seven members, namely Mr Thór Vilhjálmsson, Mr F.
Matscher, Mr J. Pinheiro Farinha, Mr R. Bernhardt, Mr A.
Spielmann, Mr J. De Meyer and Mr S.K. Martens (Article 43 in fine
of the Convention and Rule 21 § 4) (art. 43). Subsequently Mr R.
Macdonald, substitute judge, replaced Mr Pinheiro Farinha, who
was unable to take part in the further consideration of the case
(Rules 22 § 1 and 24 § 1).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 § 5) and, through the Registrar, consulted the Agent of
the French Government ("the Government"), the Delegate of the
Commission and the applicant's representative on the need for a
written procedure (Rule 37 § 1). In accordance with the order
made in consequence, the Registrar received the applicant's
claims under Article 50 (art. 50) of the Convention on 28 June
1990 and the Government's memorial on 19 October. By a letter of
9 November the Deputy Secretary to the Commission informed the
Registrar that the Delegate would submit his observations at the
hearing.
5. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on 16 November
1990 that the oral proceedings should open on 23 January 1991
(Rule 38).
6. The hearing took place in public in the Human Rights
Building, Strasbourg, on the appointed day. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mrs E. Belliard, Deputy Director of Legal Affairs,
Ministry of Foreign Affairs, Agent,
Mr B. Gain, Assistant Director of Human Rights,
Legal Affairs Directorate, Ministry of Foreign Affairs,
Miss M. Picard, magistrat, seconded to the Legal Affairs
Directorate, Ministry of Foreign Affairs,
Mrs M. Ingall-Montagnier, magistrat, seconded to the
Criminal Affairs and Pardons Directorate, Ministry of
Justice, Counsel;
(b) for the Commission
Mr A. Weitzel, Delegate;
(c) for the applicant
Ms D. Labadie, avocat, Counsel.
7. The Court heard addresses by Mrs Belliard for the
Government, by Mr Weitzel for the Commission and by Ms Labadie
for the applicant, as well as their answers to its questions. On
the occasion of the hearing the representatives of the Government
and of the applicant produced various documents.
AS TO THE FACTS
I. The particular circumstances of the case
8. Mrs Monique Merdy, née Letellier, a French national residing
at La Varenne Saint-Hilaire (Val-de-Marne), took over a
bar-restaurant in March 1985. The mother of eight children from
two marriages, she was separated from her second husband,
Mr Merdy, a petrol pump attendant, and at the material time was
living with a third man.
9. On 6 July 1985 Mr Merdy was killed by a shot fired from a
car. A witness had taken down the registration number of the
vehicle and on the same day the police detained Mr Gérard Moysan,
who was found to be in possession of a pump-action shotgun. He
admitted that he had fired the shot, but stated that he had acted
on the applicant's instructions. He claimed that she had agreed
to pay him, and one of his friends, Mr Michel Bredon - who also
accused the applicant -, the sum of 40,000 French francs for
killing her husband and that she had advanced him 2,000 francs
for the purchase of the weapon.
Mrs Letellier denied these accusations although she admitted
having seen the murder weapon, having declared in public that she
wished to get rid of her husband and having given her agreement
"without thinking too much about it" to Mr Moysan who had
proposed to carry out the deed. She maintained, moreover, that
she had given 2,000 francs to Mr Moysan, whom she described as "a
poor kid", so that he could buy a motor car.
10. On 8 July 1985, in the course of the first examination, the
investigating judge of the tribunal de grande instance (Regional
Court) of Créteil charged the applicant with being an accessory
to murder and remanded her in custody.
A. The investigation proceedings
1. The first application for release of 20 December 1985
11. On 20 December 1985 the applicant sought her release arguing
that there was no serious evidence of her guilt. She claimed in
addition that she possessed all the necessary guarantees that she
would appear for trial: her home, the business, which she ran
single-handed, and her eight children, some of whom were still
dependent on her.
12. On 24 December 1985 the investigating judge ordered her
release subject to court supervision; she gave the following
grounds for her decision:
"... at this stage of the proceedings detention is no longer
necessary for the process of establishing the truth; ...
although the accused provides guarantees that she will
appear for trial which are sufficient to warrant her
release, court supervision would seem appropriate."
He ordered the applicant not to go outside certain
territorial limits without prior authorisation, to report to him
once a week on a fixed day and at a fixed time, to appear before
him when summoned, to comply with restrictions concerning her
business activities and to refrain from receiving visits from or
meeting four named persons and from entering into contact with
them in any way whatsoever.
Thereupon the guardianship judge (juge des tutelles)
returned custody of her four minor children to Mrs Letellier.
13. On appeal by the Créteil public prosecutor, the indictments
division (chambre d'accusation) of the Paris Court of Appeal set
aside the order on 22 January 1986, declaring that it would
thereafter exercise sole jurisdiction on questions concerning the
detention. It noted in particular as follows:
"...
The file contains ... considerable evidence suggesting
that the accused was an accessory to murder, which is an
exceptionally serious criminal offence having caused a major
disturbance to public order, the gravity of which cannot
diminish in the short lapse of time of six months.
The investigations are continuing and it is necessary to
prevent any manoeuvre capable of impeding the establishment
of the truth.
In addition, in view of the severity of the sentence to
which she is liable at law, there are grounds for fearing
that she may seek to evade the prosecution brought against
her.
No measure of court supervision would be effective in
these various respects.
Ultimately detention on remand remains the sole means of
preventing pressure being brought to bear on the witnesses.
It is necessary in order to protect public order from the
disturbance caused by the offence and to ensure that the
accused remains at the disposal of the judicial authorities.
... ."
As a result, the applicant, who had been released on
24 December 1985, returned to prison on 22 January 1986.
14. At the hearing on 16 January 1986 Mrs Letellier had filed a
defence memorial. In it she stressed that she had waited until
the main phase of the investigation had been concluded before
lodging her application for release; thus all the witnesses had
been heard by the police or by the investigating judge, two
series of confrontations with Mr Moysan had taken place and all
the commissions rogatoires had been executed. She noted in
addition that Article 144 et seq. of the Code of Criminal
Procedure in no way regarded the gravity of the alleged offences
as one of the conditions for placing and keeping an accused in
pre-trial detention and that the parties seeking damages (parties
civiles) had not filed any observations on learning of her
release. She urged the indictments division to confirm the order
of 24 December 1985 releasing her subject to court supervision
and stated that she had no intention whatsoever of evading the
prosecution, that she would comply scrupulously with the court
supervision, that she could provide firm guarantees that she
would appear in court and that further imprisonment would
destroy, both financially and emotionally, a whole family, whose
sole head she remained.
15. Mrs Letellier filed an appeal which the Criminal Division of
the Court of Cassation dismissed on 21 April 1986 on the
following grounds:
"...
In setting aside the order for the release subject to
court supervision of Monique Merdy, née Letellier, accused
of being an accessory to the murder of her husband, the
indictments division, after having set out the facts and
noted the existence of divergences between her statements
and the various testimonies obtained, observed that the
offence had caused a disturbance to public order which had
not yet diminished, that, as the investigation was
continuing, it was important to prevent any manoeuvre likely
to impede the establishment of the truth and bring pressure
to bear on the witnesses, and that the severity of the
sentence to which the accused was liable at law raised
doubts as to whether she would appear for trial if she were
released; the indictments division considered that no
measure of court supervision could be effective in these
various respects;
That being so the Court of Cassation is able to satisfy
itself that the indictments division ordered the continued
detention of Monique Merdy, née Letellier, by a decision
stating specific grounds with reference to the particular
circumstances and for cases provided for in Articles 144 and
145 of the Code of Criminal Procedure;
... ."
2. The second application for release of 24 January 1986
16. On 24 January 1986 the applicant again requested her
release; the indictments division of the Paris Court of Appeal
dismissed her application by a decision of 12 February 1986,
similar to its earlier decision (see paragraph 13 above).
17. On an appeal by Mrs Letellier, the Court of Cassation set
aside this decision on 13 May 1986 on the ground that the rights
of the defence had been infringed as neither the applicant nor
her counsel had been notified of the date of the hearing fixed
for the examination of the application. It remitted the case to
the indictments division of the Paris Court of Appeal, composed
differently.
18. The latter indictments division dismissed the application on
17 September 1986. It considered that there were "in the light
of the evidence ..., serious grounds for suspecting that the
accused had been an accessory to murder". It took the view that
"under these circumstances ..., the accused's detention [was]
necessary, having regard to the seriousness of the offence ...
and the length of the sentence [which she risked], in order to
ensure that she remain[ed] at the disposal of the judicial
authorities and to maintain public order".
It also dismissed the complaints based on a violation of
Article 5 §§ 3 and 4 (art. 5-3, art. 5-4) of the Convention,
stressing that these complaints were not based on any provision
of the Code of Criminal Procedure and that it had taken its
decision with due dispatch in accordance with that code.
19. At the hearing on 16 September 1986, Mrs Letellier had
submitted a defence memorial. In it she requested the
indictments division to order her release "because her
application for release had not been heard within a reasonable
time" within the meaning of Article 5 § 3 (art. 5-3) of the
Convention and to take formal note that she did not object to
being placed under court supervision.
20. On an appeal by Mrs Letellier, the Court of Cassation
overturned this decision on 23 December 1986. It found that the
Court of Appeal had not answered the submissions concerning the
failure to respect the "reasonable time" referred to in
Article 5 § 3 (art. 5-3).
21. On 17 March 1987 the indictments division of the Amiens
Court of Appeal dismissed the application, which had been
remitted to it, on the following grounds:
"...
... the charges are indeed based on sufficient, relevant
and objective evidence despite the accused's claim to the
contrary;
Having regard to the complexity of the case and to the
investigative measures which it necessitates, the time taken
to conduct the investigation remains reasonable for the
purposes of the European Convention, with reference to the
dates on which Mrs Letellier was placed in detention and had
her detention extended; the proceedings have never been
neglected, as examination of the file shows;
Mrs Letellier's complaint that a reasonable time has been
exceeded is also directed against the time taken to hear her
application for release ... and she infers therefrom, by
analogy with Articles 194 and 574-1 of the French Code of
Criminal Procedure, that such a decision should have been
taken within a period of between thirty days and three
months;
However, none of the provisions of that code which are
expressly applicable to the present dispute has been
infringed and it must be recognised that the period of time
which elapsed between the date of the application and that
of the present judgment is only the inevitable result of the
various appeals filed;
Finally the applicant's continued detention on remand
remains necessary to preserve public order from the
disturbance caused by such a - according to the present
state of the investigation - decisive act of incitement to
the murder of Mr Merdy; the extent of such disturbance, to
the whole community, is not determined only on the basis of
the reactions of the victim's entourage, contrary to what
the defence claims ... . "
22. The applicant filed an appeal on points of law. She relied
inter alia on Article 5 § 3 (art. 5-3) of the Convention,
claiming that the indictments division had "failed to consider
whether detention lasting more than twenty-two months, when the
investigation [was] not yet concluded, exceeded a reasonable
time". She also alleged violation of Article 5 § 4 (art. 5-4)
inasmuch as the eighty-three days which had elapsed between the
judgment of the Court of Cassation on 23 December 1986 and the
judgment of the court to which the application was remitted could
not be regarded as satisfying the requirement of speediness.
The Court of Cassation dismissed the appeal on 15 June 1987
on the following grounds:
"...
In order to reply to the accused's submissions based on
the provisions of Article 5 § 3 (art. 5-3) of the European
Convention for the Protection of Human Rights and
Fundamental Freedoms, which she had claimed had been
infringed, the court to which the application was remitted
found that, in relation to the dates on which Monique
Letellier had been placed in detention on remand and had her
detention extended, having regard to the complexity of the
case and the necessary investigative measures, the
proceedings had been conducted within a reasonable time
within the meaning of the above-mentioned Convention; it
found that the time which had elapsed between the date of
her application for release of 24 January 1986 and that of
the present judgment was only the inevitable result of the
various appeals filed, cited in the judgment;
Moreover, in dismissing this application for release and
ordering the accused's continued detention on remand, the
indictments division, after having referred to the grounds
for suspicion against Monique Letellier, noted that the
latter denied having been an accessory in any way although
the declarations in turn of the two main witnesses conflict
with the accused's version. According to the indictments
division, it remains necessary to keep the accused in
detention on remand in order to protect public order from
the disturbance to which incitement to the murder of a
husband gives rise;
In the light of the foregoing statements, the Court of
Cassation is able to satisfy itself that the indictments
division, before which no submissions based on the
provisions of Article 5 § 4 (art. 5-4) of the European
Convention were raised and which was not bound by the
requirements of Article 145-1, sub-paragraph 3, of the Code
of Criminal Procedure, which do not apply in proceedings
concerning more serious criminal offences (matière
criminelle), did, without infringing the provisions referred
to in the defence submissions, give its ruling stating
specific grounds with reference to the particular
circumstances of the case, under the conditions and for the
cases exhaustively listed in Articles 144 and 145 of the
Code of Criminal Procedure;
... ."
3. The other applications for release
23. During the investigation, the applicant submitted six other
applications for release: on 14 February, 21 March, 19 November
and 15 December 1986 and then on 31 March and 5 August 1987. The
indictments division of the Paris Court of Appeal dismissed them
on 5 March, 10 April, 5 December and 23 December 1986 and on 10
April and 24 August 1987 respectively. It based its decisions on
the following grounds:
Judgment of 5 March 1986
"...
The file thus contains considerable evidence suggesting
that the accused was an accessory to murder, which is an
exceptionally serious criminal offence having caused a major
disturbance to public order, the gravity of which cannot
diminish in the short lapse of time of seven months.
The investigations are continuing and it is necessary to
prevent any manoeuvre capable of impeding the establishment
of the truth.
In addition, in view of the severity of the sentence to
which she is liable at law, there are grounds for fearing
that she may seek to evade the prosecution brought against
her.
No measure of court supervision would be effective in
these various respects.
Ultimately, detention on remand remains the sole means of
preventing pressure being brought to bear on the witnesses.
It is necessary to protect public order from the
disturbance caused by the offence and to ensure that the
accused remains at the disposal of the judicial authorities.
... ."
Judgments of 10 April and 5 December 1986
Identical to the preceding decision - itself very similar
to that of 22 January 1986 (see paragraph 13 above) - except
that the sixth paragraph was not included and that the first
paragraph ended at the word "accessory".
Judgment of 23 December 1986
"...
In these circumstances there are strong indications of Mrs
Merdy's guilt, indications which were moreover noted most
recently by a judgment of this indictments division dated 5
December 1986.
The acts which Mrs Merdy is alleged to have carried out
seriously disturbed public order and this disturbance
persists. In addition there is a risk that, if she were to
be freed, she would, in view of the severity of the sentence
to which she is liable, seek to evade the criminal
proceedings brought against her.
The constraints of court supervision would be inadequate
in this instance.
The detention on remand of Mrs Merdy is necessary to
preserve public order from the disturbance caused by the
offence and to ensure that she remains at the disposal of
the judicial authorities.
... ."
Judgment of 10 April 1987
"...
There are strong indications of Monique Letellier's guilt,
having regard to the consistency of Mr Moysan's statements.
No new item of evidence has as yet been brought to the
court's attention such as would be capable of altering the
situation as regards Monique Letellier's incarceration.
The continuation of her detention on remand remains
necessary to preserve public order from the serious
disturbance caused by the offence and to ensure that she
will appear for trial.
The constraints of court supervision would clearly be
inadequate to attain these objectives.
... ."
Judgment of 24 August 1987
"...
In the present state of the proceedings, Monique Letellier
is the subject of an order for the forwarding of documents
to the principal public prosecutor dated 8 July 1987 made by
the Créteil investigating judge, which gives grounds for
supposing that the investigation is close to conclusion so
that the competent court will be able to give judgment
within a reasonable time.
In consequence the detention on remand is absolutely
necessary on account of the particularly serious disturbance
caused by the offence.
It is to be feared that Mrs Letellier will seek to evade
trial, having regard to the severity of the sentence which
she risks.
It is consequently essential that the accused remains in
detention in order to ensure that she is at the disposal of
the trial court.
The guarantees of court supervision would clearly be
inadequate to attain these objectives.
... ."
24. In the defence memorials which she submitted at the hearings
on 23 December 1986, 3 March 1987 and 10 April 1987, Mrs
Letellier stressed the contradictions in the investigation and
the statements of the witnesses. Moreover, she contested the
arguments put forward to justify the extension of her detention.
She maintained that, once released, she would remain at the
disposal of the judicial authorities and that public order would
in no way be threatened; she would comply scrupulously with any
court supervision; she would provide very firm guarantees for her
appearance in court and her continued detention would destroy
emotionally and financially a whole family, whose sole head she
remained. She claimed the benefit of the presumption of
innocence, a fundamental and inviolable principle of French law.
In her memorial of 3 March 1987, the applicant also invoked
Article 5 § 3 (art. 5-3) of the Convention. She noted that "...
in accordance with the case-law of the European Court of Human
Rights, the grounds given in the decision(s) concerning the
application(s) for release, on the one hand, taken together with
the true facts indicated by [her] in her applications, on the
other, [made] it possible [for her] to affirm that those grounds
contained both in the judgment ... of 12 February 1986 and in the
preceding judgment of 22 January 1986 and in the subsequent
judgments [were] neither relevant nor sufficient". She added
that the parties seeking damages, the victim's mother and sister,
had not formulated any observations when she had filed her
applications for release of December 1985, January, February,
March, November and December 1986, whereas they had energetically
opposed those of Mr Moysan; she reiterated this last argument in
her memorial of 10 April 1987.
25. The case followed its course. On 26 May 1987 the
investigating judge made an order terminating the investigation
and transmitting the papers to the public prosecutor's office.
On 1 July the Créteil public prosecutor lodged his final
submissions calling for the file to be transmitted to the
principal public prosecutor's office of the Court of Appeal.
This was ordered by the investigating judge on 8 July.
B. The trial proceedings
26. On 26 August 1987 the indictments division committed the
applicant for trial on a charge of
"having, in the course of 1985 in Val-de-Marne, being less
than ten years ago, been an accessory to the premeditated
murder of Bernard Merdy committed on 6 July 1985 by Gérard
Moysan, inasmuch as she had by gifts, promises, threats,
misuse of authority or power, incited the commission of this
deed or given instructions for its commission".
27. On 9 September 1987 the Créteil public prosecutor's office
advised Mrs Letellier's counsel that "the case [was] liable to be
heard during the first quarter of 1988". By a letter of
21 October 1987, however, the lawyer in question gave notice that
he would be unavailable from 1 February to 15 March 1988 on
account of his participation in another trial before the Assize
Court of the Vienne département.
28. On 23 March 1988 the public prosecutor informed the
accused's lawyer that the case would be heard on 9 and 10 May
1988. On 10 May 1988 the Val-de-Marne Assize Court sentenced Mrs
Letellier to three years' imprisonment for being an accessory to
murder. It sentenced Mr Moysan to fifteen years' imprisonment
for murder and acquitted Mr Bredon.
The applicant did not file an appeal on points of law; she
was released on 17 May 1988, the pre-trial detention being
automatically deducted from the sentence (Article 24 of the
Criminal Code).
II. The relevant legislation
29. The provisions of the Code of Criminal Procedure concerning
detention on remand, as applicable at the material time, are as
follows:
Article 144
"In cases involving less serious criminal offences
(matière correctionnelle), if the sentence risked is equal
to or exceeds one year's imprisonment in cases of flagrante
delicto, or two years' imprisonment in other cases, and if
the constraints of court supervision are inadequate in
regard to the functions set out in Article 137, the
detention on remand may be ordered or continued:
1° where the detention on remand of the accused is the sole
means of preserving evidence or material clues or of
preventing either pressure being brought to bear on the
witnesses or the victims, or collusion between the accused
and accomplices;
2° where this detention is necessary to preserve public
order from the disturbance caused by the offence or to
protect the accused, to put an end to the offence or to
prevent its repetition or to ensure that the accused remains
at the disposal of the judicial authorities.
... ."
(An Act of 6 July 1989 expressly provided that Article 144
was to be applicable to more serious criminal cases (matière
criminelle).)
Article 145
"In cases involving less serious criminal offences, an accused
shall be placed in detention on remand by virtue of an order
which may be made at any stage of the investigation and which
must give specific reasons with reference to the particular
circumstances of the case in relation to the provisions of
Article 144; this order shall be notified orally to the accused
who shall receive a full copy of it; receipt thereof shall be
acknowleged by the accused's signature in the file of the
proceedings.
As regards more serious criminal offences, detention is
prescribed by warrant, without a prior order.
...
The investigating judge shall give his decision in chambers,
after an adversarial hearing in the course of which he shall hear
the submissions of the public prosecutor, then the observations
of the accused and, if appropriate, of his counsel.
... ."
Article 148
"Whatever the classification of the offence, the accused or his
lawyer may lodge at any time with the investigating judge an
application for release, subject to the obligations laid down in
the preceding Article [namely: the undertaking of the person
concerned "to appear whenever his presence is required at the
different stages of the procedure and to keep the investigating
judge informed as to all his movements"].
The investigating judge shall communicate the file immediately
to the public prosecutor for his submissions. He shall at the
same time, by whatever means, inform the party seeking damages
who may submit observations. ...
The investigating judge shall rule, by an order giving specific
grounds under the conditions laid down in Article 145-1, not
later than five days following the communication to the public
prosecutor.
...
Where an order is made releasing the accused, it may be
accompanied by an order placing him under court supervision.
... ."
Article 194
"...
[The indictments division] shall, when dealing with the
question of detention, give its decision as speedily as possible
and not later than thirty days [fifteen since 1 October 1988]
after the appeal provided for in Article 186, failing which the
accused shall automatically be released, except where
verifications concerning his application have been ordered or
where unforeseeable and insurmountable circumstances prevent the
matter from being decided within the time-limit laid down in the
present Article."
Article 567-2
"The criminal division hearing an appeal on a point of law
against a judgment of the indictments division concerning
detention on remand shall rule within three months of the
file's reception at the Court of Cassation, failing which
the accused shall automatically be released.
The appellant or his lawyer shall, on pain of having his
application dismissed, file his memorial setting out the
appeal submissions within one month of the file's reception,
save where exceptionally the president of the criminal
division has decided to extend the time-limit for a period
of eight days. After the expiry of this time-limit, no new
submission may be raised by him and memorials may no longer
be filed.
... ."
PROCEEDINGS BEFORE THE COMMISSION
30. In her application of 21 August 1986 to the Commission
(no.12369/86) Mrs Letellier complained that her detention on
remand had exceeded the "reasonable time" provided for in
Article 5 § 3 (art. 5-3) of the Convention. She alleged
furthermore that the various courts which had in turn examined
her application for release of 24 January 1986 had not ruled
"speedily" as is required under Article 5 § 4 (art. 5-4).
31. The Commission declared the application admissible on
13 March 1989. In its report of 15 March 1990 (Article 31)
(art. 31), it expressed the opinion that there had been a
violation of paragraph 3 (unanimously) and paragraph 4 (seventeen
votes to one) of Article 5 (art. 5-3, art. 5-4). The full text
of the Commission's opinion and the dissenting opinion
accompanying the report is reproduced as an annex to this
judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will
appear only with the printed version of the judgment (volume 207
of Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
32. At the hearing the Government confirmed the submission put
forward in their memorial, in which they asked the Court to "hold
that there [had] not been in this instance a violation of Article
5 §§ 3 and 4 (art. 5-3, art. 5-4) of the Convention".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 (art. 5-3)
33. The applicant claimed that the length of her detention on
remand had violated Article 5 § 3 (art. 5-3), which is worded as
follows:
"Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article (art. 5-1-c),
... shall be entitled to trial within a reasonable time or
to release pending trial. Release may be conditioned by
guarantees to appear for trial."
The Government contested this view. The Commission
considered that after 22 January 1986 (see paragraph 13 above)
the grounds for Mrs Letellier's detention had no longer been
reasonable.
A. Period to be taken into consideration
34. The period to be taken into consideration began on
8 July 1985, the date on which the applicant was remanded in
custody, and ended on 10 May 1988, with the judgment of the
Assize Court, less the period, from 24 December 1985 to
22 January 1986, during which she was released subject to court
supervision (see paragraph 12 above). It therefore lasted two
years and nine months.
B. Reasonableness of the length of detention
35. It falls in the first place to the national judicial
authorities to ensure that, in a given case, the pre-trial
detention of an accused person does not exceed a reasonable time.
To this end they must examine all the facts arguing for or
against the existence of a genuine requirement of public interest
justifying, with due regard to the principle of the presumption
of innocence, a departure from the rule of respect for individual
liberty and set them out in their decisions on the applications
for release. It is essentially on the basis of the reasons given
in these decisions and of the true facts mentioned by the
applicant in his appeals, that the Court is called upon to decide
whether or not there has been a violation of Article 5 § 3
(art. 5-3) of the Convention (see, inter alia, the Neumeister
judgment of 27 June 1968, Series A no. 8, p. 37, §§ 4-5).
The persistence of reasonable suspicion that the person
arrested has committed an offence is a condition sine qua non for
the validity of the continued detention (see the Stögmüller
judgment of 10 November 1969, Series A no. 9, p. 40, § 4), but,
after a certain lapse of time, it no longer suffices; the Court
must then establish whether the other grounds cited by the
judicial authorities continue to justify the deprivation of
liberty (ibid., and see the Wemhoff judgment of 27 June 1968,
Series A no. 7, pp. 24-25, § 12, and the Ringeisen judgment of
16 July 1971, Series A no. 13, p. 42, § 104). Where such grounds
are "relevant" and "sufficient", the Court must also ascertain
whether the competent national authorities displayed "special
diligence" in the conduct of the proceedings (see the
Matznetter judgment of 10 November 1969, Series A no. 10, p. 34,
§ 12, and the B. v. Austria judgment of 28 March 1990, Series A
no. 175, p. 16, § 42).
36. In order to justify their refusal to release Mrs Letellier,
the indictments divisions of the Paris and Amiens Courts of
Appeal stressed in particular that it was necessary to prevent
her from bringing pressure to bear on the witnesses, that there
was a risk of her absconding which had to be countered, that
court supervision was not sufficient to achieve these objectives
and that her release would gravely disturb public order.
1. The risk of pressure being brought to bear on the
witnesses
37. The Government pointed out that the charges against
Mrs Letellier were based essentially on the statements of
Mr Moysan and Mr Bredon (see paragraph 9 above). The latter, who
was examined by the investigating judge on 25 November 1985,
could not, on account of his failure to appear, be confronted
with the accused on 17 December 1985. The need to avoid pressure
being brought to bear such as was liable to lead to changes in
the statements of witnesses at confrontations which were
envisaged was one of the grounds given in the decision of
22 January 1986 of the Paris indictments division (see paragraph
13 above).
38. According to the Commission, although such a fear was
conceivable at the beginning of the investigation, it was no
longer decisive after the numerous examinations of witnesses.
Moreover, nothing showed that the applicant had engaged in
intimidatory actions during her release subject to court
supervision (see paragraphs 12-13 above).
39. The Court accepts that a genuine risk of pressure being
brought to bear on the witnesses may have existed initially, but
takes the view that it diminished and indeed disappeared with the
passing of time. In fact, after 5 December 1986 the courts no
longer referred to such a risk: only the decisions of the Paris
indictments division of 22 January, 5 March, 10 April and
5 December 1986 (see paragraphs 13 and 23 above) regarded
detention on remand as the sole means of countering it.
After 23 December 1986 in any event (see paragraph 23
above), the continued detention was therefore no longer justified
under this head.
2. The danger of absconding
40. The various decisions of the Paris indictments division (see
paragraphs 13, 16, 18 and 23 above) were based on the fear of the
applicant's evading trial because of "the severity of the
sentence to which she was liable at law" and on the need to
ensure that she remained at the disposal of the judicial
authorities.
41. The Commission observed that during the four weeks for which
she had been released - from 24 December 1985 to 22 January
1986 - the applicant had complied with the obligations of court
supervision and had not sought to abscond. To do so would,
moreover, have been difficult for her, as the mother of minor
children and the manager of a business representing her sole
source of income. As the danger of absconding had not been
apparent from the outset, the decisions given had contained
inadequate statements of reasons in so far as they had mentioned
no circumstance capable of establishing it.
42. The Government considered that there was indeed a danger of
the accused's absconding. They referred to the severity of the
sentence which Mrs Letellier risked and the evidence against her.
They also put forward additional considerations which were not
however invoked in the judicial decisions in question.
43. The Court points out that such a danger cannot be gauged
solely on the basis of the severity of the sentence risked. It
must be assessed with reference to a number of other relevant
factors which may either confirm the existence of a danger of
absconding or make it appear so slight that it cannot justify
detention pending trial (see, mutatis mutandis, the Neumeister
judgment cited above, Series A no. 8, p. 39, § 10). In this case
the decisions of the indictments divisions do not give the
reasons why, notwithstanding the arguments put forward by the
applicant in support of her applications for release, they
considered the risk of her absconding to be decisive (see
paragraphs 14, 19 and 24 above).
3. The inadequacy of court supervision
44. According to the applicant, court supervision would have
made it possible to attain the objectives pursued. Furthermore,
she had been under such supervision without any problems arising
for nearly one month, from 24 December 1985 to 22 January 1986
(see paragraphs 12-13 above), and had declared her readiness to
accept it on each occasion that she sought her release (see
paragraphs 14, 19 and 24 above).
45. The Government considered on the other hand that court
supervision would not have been sufficient to avert the
consequences and risks of the alleged offence.
46. When the only remaining reason for continued detention is
the fear that the accused will abscond and thereby subsequently
avoid appearing for trial, he must be released if he is in a
position to provide adequate guarantees to ensure that he will so
appear, for example by lodging a security (see the Wemhoff
judgment, cited above, Series A no. 7, p. 25, § 15).
The Court notes, in agreement with the Commission, that the
indictments divisions did not establish that this was not the
case in this instance.
4. The preservation of public order
47. The decisions of the Paris indictments division
of 22 January, 5 March and 23 December 1986 and of 10 April and
24 August 1987 (see paragraphs 13 and 23 above), like that of the
Amiens indictments division of 17 March 1987 (see paragraph 21
above), emphasized the need to protect public order from the
disturbance caused by Mr Merdy's murder.
48. The applicant argued that disturbance to public order could
not result from the mere commission of an offence.
49. According to the Commission, the danger of such a
disturbance, which it understood to mean disturbance of public
opinion, following the release of a suspect, cannot derive solely
from the gravity of a crime or the charges pending against the
person concerned. In order to determine whether there was a
danger of this nature, it was in its view necessary to take
account of other factors, such as the possible attitude and
conduct of the accused once released; the French courts had not
done this in the present case.
50. For the Government, on the other hand, the disturbance to
public order is generated by the offence itself and the
circumstances in which it has been perpetrated. Representing an
irreparable attack on the person of a human being, any murder
greatly disturbs the public order of a society concerned to
guarantee human rights, of which respect for human life
represents an essential value, as is shown by Article 2 (art. 2)
of the Convention. The resulting disturbance is even more
profound and lasting in the case of premeditated and organised
murder. There were grave and corroborating indications to
suggest that Mrs Letellier had conceived the scheme of murdering
her husband and instructed third parties to carry it out in
return for payment.
51. The Court accepts that, by reason of their particular
gravity and public reaction to them, certain offences may give
rise to a social disturbance capable of justifying pre-trial
detention, at least for a time. In exceptional circumstances
this factor may therefore be taken into account for the purposes
of the Convention, in any event in so far as domestic law
recognises - as in Article 144 of the Code of Criminal
Procedure - the notion of disturbance to public order caused by
an offence.
However, this ground can be regarded as relevant and
sufficient only provided that it is based on facts capable of
showing that the accused's release would actually disturb public
order. In addition detention will continue to be legitimate only
if public order remains actually threatened; its continuation
cannot be used to anticipate a custodial sentence.
In this case, these conditions were not satisfied. The
indictments divisions assessed the need to continue the
deprivation of liberty from a purely abstract point of view,
taking into consideration only the gravity of the offence. This
was despite the fact that the applicant had stressed in her
memorials of 16 January 1986 and of 3 March and 10 April 1987
that the mother and sister of the victim had not submitted any
observations when she filed her applications for release, whereas
they had energetically contested those filed by Mr Moysan (see
paragraphs 14 and 24 in fine above); the French courts did not
dispute this.
5. Conclusion
52. The Court therefore arrives at the conclusion that, at least
from 23 December 1986 (see paragraph 39 above), the contested
detention ceased to be based on relevant and sufficient grounds.
The decision of 24 December 1985 to release the accused was
taken by the judicial officer in the best position to know the
evidence and to assess the circumstances and personality of
Mrs Letellier; accordingly the indictments divisions ought in
their subsequent judgments to have stated in a more clear and
specific, not to say less stereotyped, manner why they considered
it necessary to continue the pre-trial detention.
53. There has consequently been a violation of Article 5 § 3
(art. 5-3).
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 (art. 5-4)
54. The applicant also alleged a breach of the requirements of
Article 5 § 4 (art. 5-4), according to which:
"Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a
court and his release ordered if the detention is not
lawful."
She claimed that the final decision concerning her
application for release of 24 January 1986, namely the Court of
Cassation's dismissal on 15 June 1987 of her appeal against the
decision of the indictments division of the Amiens Court of
Appeal of 17 March 1987 (see paragraphs 16, 21 and 22 above), was
not given "speedily". The Commission agreed.
55. The Government contested this view. They argued that the
length of the lapse of time in question was to be explained by
the large number of appeals filed by Mrs Letellier herself on
procedural issues: in thirteen months and three weeks the
indictments divisions gave three decisions and the Court of
Cassation two; the time which it took for these decisions to be
delivered was in no way excessive and could not be criticised
because it was in fact the result of the systematic use of
remedies available under French law.
56. The Court has certain doubts about the overall length of the
examination of the second application for release, in particular
before the indictments divisions called upon to rule after a
previous decision had been quashed in the Court of Cassation; it
should however be borne in mind that the applicant retained the
right to submit a further application at any time. Indeed from
14 February 1986 to 5 August 1987 she lodged six other
applications, which were all dealt with in periods of from eight
to twenty days (see paragraph 23 above).
57. There has therefore been no violation of Article 5 § 4
(art. 5-4).
III. APPLICATION OF ARTICLE 50 (art. 50)
58. According to Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by
a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict
with the obligations arising from the ... Convention, and if
the internal law of the said Party allows only partial
reparation to be made for the consequences of this decision
or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
Under this provision, the applicant claimed compensation for
damage and the reimbursement of costs.
A. Damage
59. Mrs Letellier sought in the first place 10,000 francs in
respect of non-pecuniary damage and 435,000 francs for pecuniary
damage; the latter amount was said to represent half the turnover
which her bar-restaurant could have achieved between her arrest
and the verdict of the assize court.
60. The Government did not perceive any causal connection
between the alleged breaches and the pecuniary damage resulting
for the applicant from her deprivation of liberty, which she
would in any case have had to undergo once convicted.
Furthermore, they considered that the finding of a violation
would constitute sufficient reparation for the non-pecuniary
damage.
61. The Delegate of the Commission expressed the view that she
should be awarded compensation for non-pecuniary damage and, if
appropriate, pecuniary damage, but did not put forward any
figure.
62. The Court dismisses the application for pecuniary damage,
because the pre-trial detention was deducted in its entirety from
the sentence. As to non-pecuniary damage, the Court considers
that the present judgment constitutes sufficient reparation.
B. Costs and expenses
63. For the costs and expenses referable to the proceedings
before the Convention institutions, Mrs Letellier claimed 21,433
francs.
64. The Government did not express an opinion on this issue.
The Delegate of the Commission left the quantum to be determined
by the Court.
65. The amount claimed corresponds to the criteria laid down by
the Court in its case-law and it accordingly considers it
equitable to allow the applicant's claims under this head in
their entirety.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 5 § 3
(art. 5-3);
2. Holds that there has been no violation of Article 5 § 4
(art. 5-4);
3. Holds that the respondent State is to pay to the applicant,
in respect of costs and expenses, 21,433 (twenty-one
thousand four hundred and thirty-three) French francs;
4. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
26 June 1991.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar