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 >> KEMMACHE v. FRANCE (Nos. 1 and 2) (ARTICLE 50) - 12325/86;14992/89 [1993] ECHR 51 (2 November 1993)
URL: http://www.bailii.org/eu/cases/ECHR/1993/51.html
Cite as: [1993] ECHR 51
[New search] [Contents list] [Help]
In the case of Kemmache v. France*,
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 R. Bernhardt,
Mr F. Gölcüklü,
Mr L.- E. Pettiti,
Mr C. Russo,
Mr S.K. Martens,
Mrs E. Palm,
Mr I. Foighel,
Mr R. Pekkanen,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 24 September and
27 October 1993,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 41/1990/232/298 and 53/1990/244/315. 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.
_______________
PROCEDURE AND FACTS
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") in two stages, first on 11 July and
then on 12 October 1990, on each occasion within the three-month period
laid down by Article 32 para. 1 and Article 47 (art. 32-1, art. 47) of
the Convention. It originated in two applications (nos. 12325/86 and
14992/89) against the French Republic lodged with the Commission under
Article 25 (art. 25) by a French national, Mr Michel Kemmache,
on 1 August 1986 and 28 April 1989. The Court ordered the joinder of
the two applications on 25 October 1990.
2. By judgment of 27 November 1991 ("the principal judgment"),
the Court found a violation of Article 5 para. 3 and Article 6
para. 1 (art. 5-3, art. 6-1) of the Convention on the ground that the
length of the applicant's detention on remand and of the criminal
proceedings instituted against him had exceeded a "reasonable time"
(Series A no. 218, pp. 22-31, paras. 43-71 and point 1 of the operative
provisions).
The only outstanding matter in the present case is the
question of the application of Article 50 (art. 50). As regards the
facts, reference should be made to paragraphs 9 to 36 of the
above-mentioned judgment (ibid., pp. 8-20).
3. As the issue of the award of just satisfaction was not ready
for decision, the criminal proceedings having not yet reached a
conclusion, the Court, in the principal judgment, reserved the whole
of this question. It invited the Government and the applicant to
submit to it in writing, within three months of the conclusion of the
relevant criminal proceedings, their observations and in particular to
inform it of any agreement reached between them (p. 31, para. 74 and
point 2 of the operative provisions).
4. The domestic proceedings conducted subsequent to the principal
judgment included the following decisions:
(a) on 18 December 1991 the judgment of the Alpes-Maritimes
Assize Court of 25 April 1991 sentencing Mr Kemmache to eleven years'
imprisonment and fining him 2,600,000 French francs was quashed;
(b) on 21 March 1992 the Var Assize Court, to which the case
had been remitted, adopted a judgment sentencing the accused to nine
years' imprisonment and fining him 2,600,000 francs for aiding and
abetting the importation and use on French territory of counterfeit
foreign banknotes and the unlawful circulation of such notes within the
customs area;
(c) on 3 February 1993 the applicant's appeal on points of law
was dismissed by the Court of Cassation.
Mention should also be made of various letters sent by the
Registrar to the participants in the proceedings (30 January, 16 March
and 24 June 1992), as well as letters received by him from a Government
lawyer (23 January, 10 July and 7 August 1992), from the applicant's
lawyer (6 January and 5 June 1992, 21 January and 5 March 1993) and
from the Secretary to the Commission (15 July 1992).
5. On 30 April 1993 the Registrar reminded the participants in
the proceedings of the invitation in point 2 (b) of the operative
provisions of the principal judgment (see paragraph 3 above).
The Government's memorial reached him on 7 July 1993, the
applicant's memorial on 28 July and the observations of the Delegate
of the Commission on 31 August.
6. On 24 September 1993 the Court decided that in the
circumstances of the case it was not necessary to hold a hearing.
AS TO THE LAW
7. Under 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."
By virtue of that provision the applicant sought compensation
for damage and the reimbursement of a sum of money lodged as a security
and of his costs.
A. Damage
8. According to Mr Kemmache, the violation of Article 5 para. 3
(art. 5-3) had caused him prejudice of a "psychological, non-pecuniary
and emotional nature", assessed at 8,456,250 francs, and damage of a
"financial, professional, pecuniary and social nature", estimated at
1,000,000 francs. The first sum corresponded in particular to the
constraints of being held in detention in a prison at a considerable
distance from his family, the difficulties of re-adapting to life
outside prison, the ordeal of the divorce proceedings instituted by his
wife shortly after his release and the fact that he was prevented from
looking after his young child. The second amount essentially
represented his loss of income, owing to the collapse of his companies
and the impossibility for him of resuming any commercial activity.
The breach of Article 6 para. 1 (art. 6-1) had entailed damage
of a "psychological, non-pecuniary and pecuniary nature", assessed at
a total amount of 1,000,000 francs and stemming from the impossibility
of leading a normal existence and making or putting into effect any
plans.
9. The Government maintained that the findings of violations in
this case constituted in themselves sufficient just satisfaction.
As regards Article 5 para. 3 (art. 5-3), they pointed out that
the Var Assize Court had sentenced Mr Kemmache to nine years'
imprisonment, which placed the period of eight months held to be
contrary to the Convention in perspective; they also drew attention to
the fact that the entire period of detention on remand had been
reckoned as part of his sentence.
From the point of view of Article 6 para. 1 (art. 6-1), they
urged the Court to disregard the proceedings conducted subsequent to
its judgment, which proceedings had given rise to a further application
lodged by Mr Kemmache with the Commission. They also asked the Court
to take into account the attitude of the applicant, who had tended to
provoke delays, in particular by requesting in June 1990 the
adjournment of the trial hearing and then not attending the hearing in
December of the same year because he was in hospital.
10. The Delegate of the Commission did not express a view on the
claim for pecuniary damage. He considered that the length of the
detention on remand and of the criminal proceedings had occasioned
non-pecuniary damage, in respect of which he recommended the award of
a total of 50,000 francs.
11. The Court notes that, by virtue of Article 24 of the Criminal
Code, the entire period which Mr Kemmache spent in detention on remand
was reckoned as part of his sentence (see, mutatis mutandis, the
Neumeister v. Austria judgment of 7 May 1974, Series A no. 17, p. 18,
para. 40, and the Letellier v. France judgment of 26 June 1991,
Series A no. 207, p. 23, para. 62). This being so, it does not find
sufficient causal connection between the violations found in the
principal judgment and the deterioration of the applicant's financial
and professional circumstances. It accordingly dismisses the claim for
compensation in respect of pecuniary damage.
On the other hand, it takes the view that the applicant must
have suffered non-pecuniary damage, for which the above-mentioned
findings of violations do not constitute adequate redress, even though
the conditions of detention on remand were less severe than those of
his subsequent imprisonment (see the Ringeisen v. Austria judgment of
22 June 1972, Series A no. 15, p. 10, para. 26). Making an assessment
on an equitable basis in accordance with Article 50 (art. 50), the
Court awards him 75,000 francs under this head.
B. The security
12. The applicant also sought, in connection with the breach of
Article 5 para. 3 (art. 5-3), the reimbursement of the security of
200,000 francs which he had been ordered to lodge on 10 August 1990
(100,000 francs) and 10 September 1990 (100,000 francs), in other words
before his liberation and then with effect therefrom.
13. In the Government's contention, there was no causal connection
between the lodging of a security and a breach of Article 5 para. 3
(art. 5-3). In this instance half the sum in question had guaranteed
that the accused would appear for trial and the other half had secured
the payment of the fine imposed by the Assize Court.
14. The Delegate of the Commission did not express a view on this
matter.
15. In the principal judgment, the Court held that Mr Kemmache's
detention on remand had exceeded a reasonable time in so far as it
lasted until 19 December 1986 (Series A no. 218, p. 27, para. 57). The
security in question was lodged several years after that date. It
cannot therefore be taken into consideration.
C. Costs and expenses
16. Finally, Mr Kemmache claimed the reimbursement of the costs
of the proceedings, including lawyers' and bailiffs' fees, incurred
first in the French courts and then before the Convention institutions;
he estimated these costs at a total of 250,000 francs.
17. The Government maintained that the costs incurred in the
French courts had no connection with the violations found by the Court.
For those referable to the Strasbourg proceedings, they requested the
Court to apply its case-law.
18. The Delegate of the Commission did not put forward an opinion
on this question.
19. The Court notes that the applicant did not provide any
itemised accounts or supporting documents. It nevertheless considers
it reasonable to accept, making an assessment on an equitable basis,
the claims for the costs incurred in Strasbourg and part of those
referable to the applicant's attempts to secure release from detention
on remand. Having regard to the criteria that it applies in this
field, the Court awards the applicant a total amount of 150,000 francs.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that the respondent State is to pay to the applicant,
within three months, 75,000 (seventy-five thousand) French
francs for non-pecuniary damage and 150,000 (one hundred and
fifty thousand) francs for costs and expenses;
2. Dismisses the remainder of the applicant's claims.
Done in English and in French, and notified in writing on
2 November 1993 pursuant to Rule 55 para. 2, second sub-paragraph, of
the Rules of Court.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar