In the case of Navarra 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 F. Gölcüklü,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mrs E. Palm,
Mr A.N. Loizou,
Mr J.M. Morenilla,
Mr A.B. Baka,
Mr L. Wildhaber,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Having deliberated in private on 25 May and 26 October 1993,
Delivers the following judgment, which was adopted on the
Notes by the Registrar
* The case is numbered 38/1992/383/461. 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.
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 26 October 1992,
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 an application (no. 13190/87) against the French Republic
lodged with the Commission under Article 25 (art. 25) by a French
national, Mr Paul Navarra, on 31 July 1987.
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
as to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Article 5 para. 4
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated
that he wished to take part in the proceedings and designated the
lawyer who would represent him (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 para. 3 (b)). On
30 October 1992, in the presence of the Registrar, the President drew
by lot the names of the other seven members, namely Mr F. Gölcüklü,
Mr N. Valticos, Mrs E. Palm, Mr A.N. Loizou, Mr J.M. Morenilla,
Mr A.B. Baka and Mr L. Wildhaber (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43). Subsequently,
Mr F. Matscher, substitute judge, replaced Mr Valticos, who was
unable to take part in the further consideration of the case
(Rule 22 §§ 1 and 2 and Rule 24 para. 1).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the French
Government ("the Government"), the applicant's lawyer and the
Delegate of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in
consequence, the Registrar received the Government's memorial on
19 March 1993 and the applicant's memorial on 13 April. By a
letter of 18 May, the Delegate of the Commission informed the
Registrar that he would address the Court at the hearing.
5. On 1 April 1993 the Commission produced the file on the
proceedings before it, as requested by the Registrar on the
6. In accordance with the President's decision, the hearing
took place in public in the Human Rights Building, Strasbourg,
on 24 May 1993. The Court had held a preparatory meeting
There appeared before the Court:
(a) for the Government
Mr B. Gain, Head of the Human Rights Section,
Legal Affairs Department, Ministry of
Foreign Affairs, Agent,
Mr P. Titiun, magistrat, on secondment to the
Legal Affairs Department, Ministry of
Foreign Affairs, Counsel;
(b) for the Commission
Mr B. Marxer, Delegate;
(c) for the applicant
Mr J. Ciccolini, avocat, Counsel.
The Court heard addresses by Mr Gain, by Mr Marxer and by
Mr Ciccolini, as well as their replies to a question from one of
AS TO THE FACTS
I. The particular circumstances of the case
7. Mr Paul Navarra, a farmer, lives in Bastia, Upper Corsica.
On 22 November 1985 he was remanded in custody on a charge of
armed robbery. During his detention on remand in Nice prison,
he filed six applications for release.
A. The first two applications for release
8. An investigating judge of the Nice tribunal de grande
instance dismissed the first two applications, lodged on
28 November and 30 December 1985, by orders of 2 December 1985
and 3 January 1986. No appeal was filed from the first order;
the second was confirmed by the Indictment Division of the
Aix-en-Provence Court of Appeal on 29 January 1986.
B. The third application for release
9. On 24 March 1986 the investigating judge also dismissed the
third application, which had been made on 19 March.
10. On 23 April 1986 the Indictment Division found inadmissible
the appeal filed by the applicant on 25 March against that
decision, which it declared void inasmuch as it had been made in
respect of an application which did not comply with procedural
requirements, not having been filed in the manner prescribed in
the Code of Criminal Procedure.
11. On 28 May 1986 the applicant appealed to the Court of
Cassation, which received the file on 19 June. On
13 September 1986 it quashed the contested decision and remitted
the case to the Indictment Division of the Montpellier Court of
12. The file reached the registry on 1 October 1986.
On 9 October the principal public prosecutor at the Montpellier
Court of Appeal notified the applicant that the hearing had been
set down for 21 October.
In a memorial of 17 October 1986 Mr Navarra's lawyer
complained of the failure to comply with the time-limit within
which, according to Article 194 of the Code of Criminal Procedure
(see paragraph 18 below), the appeal of 25 March 1986 should have
been examined. He also maintained that the matter had not been
decided "speedily", as required by Article 5 para. 4 (art. 5-4)
of the Convention.
13. On 24 October 1986 the Montpellier Indictment Division
declared the appeal of 25 March 1986 ill-founded and confirmed
the order made on 24 March dismissing the application for release
of 19 March. It noted as follows:
The proceedings followed a normal course and in these
circumstances it does not appear that there was a failure
to comply with the provisions of Article 194 of the Code of
Criminal Procedure, as is claimed by Paul Navarra's lawyer
in his memorial.
14. On 19 November 1986 the applicant appealed to the Court of
Cassation, alleging that the Indictment Division had not replied
to the submission based on Article 5 para. 4 (art. 5-4) of the
The Court of Cassation dismissed this appeal on
24 February 1987, on the following grounds:
"... the Indictment Division, which found, moreover
correctly, that the judgment quashed had been given within
the time-limit laid down in Article 194 of the Code of
Criminal Procedure, replied sufficiently, albeit
implicitly, to the submission in the memorial before it
complaining of a failure to comply with the time-limit, and
was not open to the criticism levelled in the second limb
of the submission, which must accordingly be dismissed;
C. The last three applications for release
15. On 20 March and 18 May 1987 the applicant lodged his fourth
and fifth applications for release. The investigating judge of
the Nice tribunal de grande instance dismissed them by orders of
25 March and 22 May, which were upheld by the Indictment Division
of the Aix-en-Provence Court of Appeal on 21 April and
17 June 1987.
On the other hand, on 27 November 1987 the investigating
judge allowed the sixth and last application, which had been
lodged two days earlier.
D. The order finding that there was no case to answer
16. On 17 December 1987 the investigating judge made an order
finding that Mr Navarra had no case to answer.
17. On 17 March 1988, pursuant to Article 149 of the Code of
Criminal Procedure, the applicant sought 400,000 French francs
in compensation for the detention on remand that he had undergone
from 22 November 1985 to 27 November 1987. On 26 May 1989 the
Compensation Board of the Court of Cassation declared the claim
admissible but ill-founded.
II. The relevant domestic law
18. As applicable at the material time, the relevant provisions
of the Code of Criminal Procedure are as follows:
"Whatever the classification of the offence, the accused
or his lawyer may lodge at any time with the investigating
judge an application for release ...
The investigating judge shall immediately communicate the
file to the public prosecutor for his submissions. He
shall at the same time, by whatever means, inform any party
seeking damages, who may submit observations ...
The investigating judge shall rule, by an order giving
specific grounds ..., not later than five days after the
communication of the file to the public prosecutor.
When an order is made releasing the accused it may be
accompanied by an order placing him under court
The Law of 6 July 1989 added to the third paragraph a
sentence, which is worded as follows:
"However, where a decision has not yet been made on a
previous application for release or on the appeal from a
previous order refusing release, the five-day prescribed
period begins to run with effect from the decision given by
the investigating authority."
"Any court called upon to rule ... on an application for
release shall give its decision after hearing the
prosecution and the accused or his counsel. Where the
accused is not in custody, he and his counsel shall be
summoned by registered letter at least forty-eight hours
before the date of the hearing.
The court hearing the application shall give its decision
within ten days of receipt of the application at first
instance or within twenty days of the appeal at second
instance; ... where no decision is forthcoming on expiry of
the above time-limits, the detention on remand shall be
terminated and the accused, if not detained in connection
with other matters, shall automatically be released.
The [first instance] court's decision shall be
immediately enforceable notwithstanding any appeal; where
the accused remains in detention, the Court of Appeal shall
give its decision within twenty days of the appeal, failing
which, if he is not detained in connection with other
matters, the accused shall automatically be released."
"... a person who has been held in detention on remand
during proceedings which have been terminated in so far as
he is concerned by a finding that he has no case to answer
(non-lieu) that has become final or by an acquittal that
has become final shall be entitled to compensation where
such detention has caused him damage of a clearly
exceptional and particularly serious nature."
"The principal public prosecutor [at the Court of Appeal]
shall prepare the case file for hearing within forty-eight
hours of receiving the documents for questions relating to
detention on remand, and within ten days in all other
cases, and shall forward it, together with his submissions,
to the Indictment Division.
The Indictment Division shall, when dealing with
questions relating to detention on remand, give its
decision as speedily as possible and not later than thirty
days 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 being decided within the
time-limit laid down in the present Article."
A Law of 30 December 1987, which came into force on
1 October 1988, reduced the time-limit from thirty to fifteen
"The criminal division hearing an appeal on points of law
against the decision of the Indictment Division concerning
detention on remand shall rule within three months of the
file's receipt at the Court of Cassation, failing which the
accused shall automatically be released.
PROCEEDINGS BEFORE THE COMMISSION
19. Mr Navarra lodged his application with the Commission on
31 July 1987. He complained that his appeal of 25 March 1986
against the order made the previous day had not been heard on its
merits "speedily" as was required under Article 5 para. 4
20. The Commission declared the application (no. 13190/87)
admissible on 1 March 1991. In its report of 9 September 1992
(made under Article 31) (art. 31) it expressed the opinion, by
thirteen votes to six, that there had been no such violation.
The full text of the Commission's opinion and of the two
dissenting opinions contained in 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 273-B of Series A of the Publications of the Court), but
a copy of the Commission's report is available from the registry.
FINAL SUBMISSIONS TO THE COURT
21. At the hearing on 24 May 1993, the Agent of the Government
confirmed the submissions in his memorial, in which he requested
the Court "to hold that there has been no violation of the
Convention in this instance and to dismiss the application lodged
by Mr Navarra".
22. The applicant's lawyer urged the Court to find a violation
of Article 5 para. 4 (art. 5-4) of the Convention and to award
his client just satisfaction.
AS TO THE LAW
ALLEGED VIOLATION OF ARTICLE 5 PARA. 4 (art. 5-4)
A. Government's preliminary objection
23. The Government contended, as they had already done before
the Commission, that the applicant had failed to exhaust his
domestic remedies, inasmuch as he had not brought an action for
compensation against the State under Article L 781-1 of the Code
of Judicial Organisation, according to which:
"The State shall be under an obligation to compensate for
the damage caused by any malfunctioning of the system of
justice. This liability shall be incurred only in respect
of gross negligence or a denial of justice.
24. An action for damages may be relevant for the purposes of
Article 26 (art. 26) of the Convention, but the only remedies
which that Article requires to be exhausted are those that relate
to the breaches alleged and which are at the same time available
and sufficient. The existence of such remedies must be
sufficiently certain not only in theory but also in practice,
failing which they will lack the requisite accessibility and
effectiveness; it falls to the respondent State to establish that
these various conditions are satisfied (see, among other
authorities, the Vernillo v. France judgment of 20 February 1991,
Series A no. 198, pp. 11-12, para. 27).
Article L 781-1 of the Code of Judicial Organisation
circumscribes the State's liability very narrowly (see the same
judgment). Furthermore Mr Navarra did not claim to be the victim
of a denial of justice or even of gross negligence.
In any event, the Court observes, the right to a speedy
decision on the lawfulness of detention is to be distinguished
from the right to receive compensation for such detention (see,
mutatis mutandis, the Tomasi v. France judgment of 27 August
1992, Series A no. 241-A, p. 34, para. 79). It notes in addition
that the Compensation Board of the Court of Cassation rejected
the applicant's claim under Article 149 of the Code of Criminal
Procedure as ill-founded (see paragraph 17 above).
The objection must therefore be dismissed.
B. Merits of the complaint
25. Mr Navarra maintained that the final decision concerning his
appeal of 25 March 1986 against the order of the previous day
rejecting his application for release, namely the decision of the
Montpellier Indictment Division of 24 October 1986 (see
paragraphs 9, 10 and 13 above), had not been rendered "speedily".
It had therefore infringed Article 5 para. 4 (art. 5-4), which
is worded as follows:
"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
The Government and the Commission contested this view.
26. According to the Court's case-law on the scope of
paragraphs 1 and 4 of Article 5 (art. 5-1, art. 5-4) of the
Convention, a periodic judicial review must, if it is to satisfy
the requirements of those provisions, comply with both the
substantive and the procedural rules of the national legislation
and moreover be conducted in conformity with the aim of
Article 5 (art. 5), namely to protect the individual against
arbitrariness (see, among other authorities, the Herczegfalvy
v. Austria judgment of 24 September 1992, Series A no. 244, p. 24,
27. As regards compliance with French law, it should be noted
that the courts before which the case came gave their decisions
within the time-limits laid down by law (see paragraph 18 above):
there were two decisions of Indictment Divisions and one of the
Court of Cassation during the period in issue, from 25 March to
24 October 1986.
However, the information obtained at the hearing revealed
a delay for which the applicant was responsible. He waited until
28 May 1986 before filing an appeal on points of law against the
decision of 23 April (see paragraph 11 above). On the other
hand, the forwarding of the file to the Court of Cassation and
subsequently to the Montpellier Indictment Division, following
the remittal of the case to that court, took some time
(28 May - 19 June 1986 and 13 September - 1 October 1986, see
paragraphs 11-12 above).
28. On the matter of protection against arbitrariness, the Court
has already ruled on the question as to how far the requirement
that such proceedings be conducted "speedily" within the meaning
of paragraph 4 of Article 5 (art. 5-4) extends, namely whether
it applies only at first instance or also at subsequent stages
in the proceedings.
In several judgments it has taken into account the "overall
length" of proceedings, thus including the proceedings at all the
different levels of jurisdiction (see the Luberti v. Italy
judgment of 23 February 1984, Series A no. 75, pp. 15-16,
para. 33, and pp. 17-18, para. 37; the Bouamar v. Belgium
judgment of 29 February 1988, Series A no. 129, p. 24, para. 61;
and the Letellier v. France judgment of 26 June 1991, Series A
no. 207, p. 22, para. 56).
The Court reiterates that Article 5 para. 4 (art. 5-4) does
not compel the Contracting States to set up a second level of
jurisdiction for the examination of the lawfulness of detention
and for hearing applications for release. Nevertheless, a State
which institutes such a system must in principle accord to the
detainees the same guarantees on appeal as at first instance
(see the Toth v. Austria judgment of 12 December 1991, Series A
no. 224, p. 23, para. 84).
The requirement that a decision be given "speedily" is
undeniably one such guarantee; however, in order to determine
whether it has been complied with, it is necessary to effect an
overall assessment where, as here, the proceedings were conducted
at two levels of jurisdiction (see the above-mentioned Luberti
judgment, p. 16, para. 33); the Government correctly drew
attention to this.
29. In this instance, the Court entertains certain doubts about
the overall length of the substantive examination of the appeal
of 25 March 1986 (see paragraph 10 above). It should, however,
be borne in mind that Mr Navarra retained the right, enshrined
in French law, to submit further applications for release at any
time (see the Letellier judgment, cited above, ibid.). Yet from
25 March to 24 October 1986 he did not file any new applications;
indeed he did not do so until 20 March 1987 (see paragraphs 13
and 15 above).
30. Accordingly, there has been no violation of Article 5
para. 4 (art. 5-4).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government's preliminary objection;
2. Holds that there has been no violation of Article 5
para. 4 (art. 5-4).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
23 November 1993.
Signed: Rolv RYSSDAL
Signed: Marc-André EISSEN