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 >> MULLER v. FRANCE - 21802/93 [1997] ECHR 11 (17 March 1997)
URL: http://www.bailii.org/eu/cases/ECHR/1997/11.html
Cite as: [1997] ECHR 11
[New search] [Contents list] [Help]
In the case of Muller v. France (1),
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 Rules of Court A (2), as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr N. Valticos,
Mr R. Pekkanen,
Sir John Freeland,
Mr B. Repik,
Mr E. Levits,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 30 November 1996 and
18 February 1997,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 13/1996/632/816. 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.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the French Government
("the Government") on 31 January 1996, within the three-month period
laid down by Article 32 para. 1 and Article 47 of the Convention
(art. 32-1, art. 47). It originated in an application (no. 21802/93)
against the French Republic lodged with the European Commission of
Human Rights ("the Commission") under Article 25 (art. 25) by a
French national, Mr Patrick Muller, on 8 March 1993.
The Government's application 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 application 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. 3 of the Convention (art. 5-3).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he wished
to take part in the proceedings and designated the lawyer who would
represent him (Rule 30). On 19 September 1996 the President granted
him legal aid (Rule 4 of the Addendum to Rules of Court A).
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. 4 (b)). On 8 February 1996, in the presence of
the Registrar, the President drew by lot the names of the other
seven members, namely Mr F. Gölcüklü, Mr F. Matscher, Mr N. Valticos,
Mr R. Pekkanen, Sir John Freeland, Mr B. Repik and Mr E. Levits
(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of 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
applicant's memorial on 22 July 1996 and the Government's memorial on
30 July. On 6 September 1996 the Secretary to the Commission indicated
that the Delegate did not wish to reply in writing.
On 31 October 1996 the Commission produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
25 November 1996. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr J.-F. Dobelle, Deputy Director of Legal Affairs,
Ministry of Foreign Affairs, Agent,
Mrs M. Dubrocard, magistrat, on secondment to the
Legal Affairs Department, Ministry of Foreign
Affairs,
Mrs N. Berthélémy-Dupuy, magistrat, on secondment to the
Human Rights Office, European and International
Affairs Department, Ministry of Justice,
Mr F. Fèvre, magistrat, on secondment to the
Department of Criminal Affairs and Pardons,
Ministry of Justice, Advisers;
(b) for the Commission
Mr J.-C. Soyer, Delegate;
(c) for the applicant
Mr G.-M. Ney, of the Saverne Bar, Counsel.
The Court heard addresses by Mr Soyer, Mr Ney and Mr Dobelle.
AS TO THE FACTS
I. Circumstances of the case
6. Between July and November 1988 several armed bank robberies
were committed in eastern France. Five concurrent
judicial investigations were begun, in Colmar on 25 August, Montbéliard
on 23 September, Mulhouse on 28 October and Colmar again on 31 October.
On 13 December 1988 the Mulhouse Regional Crime Squad arrested
the applicant and his brother and took them into police custody. They
immediately admitted the offences of armed robbery, attempted
armed robbery, theft and criminal conspiracy of which they were
accused. On 15 December the Colmar investigating judge charged them
and ordered their detention pending trial. He charged five other
persons with criminal conspiracy, aiding and abetting armed robbery or
attempted armed robbery, handling stolen goods or the proceeds of
armed robbery and unlawful possession of a firearm and ordered that one
of them be detained.
Mr Muller was held in pre-trial detention for the entire
duration of the judicial investigation (see paragraphs 21-28 below).
A. The criminal proceedings
1. The judicial investigation proceedings
(a) Instructions to the police
7. Surveillance by means of shadowing and telephone tapping had
already been ordered before the arrests were made in
judicial investigations begun in proceedings against a person or
persons unknown. Further instructions were issued on 14 February 1989
to the gendarmerie in Antibes, Barr and Saverne, on 15 December 1989
to the gendarmerie in Montbéliard, on 28 September 1990 to the
Strasbourg CID and on 28 November 1990 to the gendarmerie in Saverne,
Strasbourg, Mulhouse and Wintzenheim.
(b) Amalgamation of proceedings and replacement of
investigating judges
8. The proceedings were amalgamated by the joinder on
15 December 1988 of the two investigations begun in Colmar and by the
transfer of the cases for which the Montbéliard and
Mulhouse investigating judges were responsible from them to their
colleague in Colmar on 2 February 1989 and 28 December 1989
respectively. On three occasions thereafter (11 April 1989, 1 February
and 18 April 1990) the judge investigating the case was replaced.
(c) The charges
9. In March 1989 the investigating judge brought three further
charges against suspects already being proceeded against, including the
applicant. On 10 October 1990 he charged a further person with aiding
and abetting robbery and ordered his detention pending trial for
one year, which order was renewed on expiry of the warrant. He
arranged with that person a confrontation of the co-accused, which
Mr Muller refused to attend. As a result, a further confrontation was
arranged for 11 June 1991 between the applicant and four co-accused.
Three other persons were charged on 27 November 1990, 5 February 1991
and 10 July 1991. The charge brought on 5 February had been requested
by the public prosecutor on 30 October 1990.
(d) Questioning and other investigative measures
10. In 1989 the investigating judge questioned Mr Muller on 2 and
13 February, 30 June, 27 October and 8 and 29 November. He examined
his brother, who had also been charged as a principal, on 27 January,
24 and 27 October and 8 and 30 November and some of the co-accused on
5 June and 26 October. The psychiatric, medical and social inquiry
reports on the applicant and his brother that were ordered on
14 February 1989 were filed on 15 March. On 3 March 1989 the
investigating judge had received the documents requested on
13 February 1989 from the judge responsible for the execution of
sentences in Strasbourg. Fearing that the applicant might escape, he
had him transferred on 28 April from Colmar Prison to
Strasbourg Prison. On 11 July he ordered that a co-accused who had
been in custody since 15 December 1988 should be released subject to
court supervision on terms which he subsequently varied.
11. In 1990 he questioned the principals together on 1 March and
2 July and some of the co-accused on 12 March and 18 October.
Psychiatric reports ordered on 28 September 1990 on two of the
main co-accused were filed on 3 November. On 4 January 1991 the judge
received a report requested on 28 November 1990 on a person charged on
27 November 1990. On 14 June 1991 he ordered a psychiatric report on
the accused whose detention pending trial he had ordered on
10 October 1990. He received it on 30 June 1991 at the same time as
information on that accused's personality which he had requested from
the Lure investigating judge on 4 April 1991.
(e) Closure of the judicial investigation
12. On 8 August 1991 the investigating judge sent the investigation
file to the public prosecutor, who on 24 September 1991 applied for
orders for severance, a partial committal to the Criminal Court, a
partial discharge and transfer of the remainder of the case to the
Principal Public Prosecutor.
13. On 7 November 1991 the judge ordered that the case be sent to
the Principal Public Prosecutor in respect of the offences classified
as serious crimes (crimes) - armed robbery, attempted armed robbery,
aiding and abetting armed robbery and handling the proceeds of an armed
robbery - and the connected other major offences (délits) of theft,
conspiracy and unlawful possession of firearms and ammunition. In
particular, he considered that there was sufficient evidence against
the applicant to commit him for trial on four counts of armed robbery,
three counts of attempted armed robbery, one count of conspiracy to
commit one or more serious crimes and various counts of theft of
vehicles. He made a partial discharge order in respect of
three co-accused.
14. On 12 December 1991 the Indictment Division of the
Colmar Court of Appeal committed seven people, including Mr Muller, to
stand trial at the Haut-Rhin Assize Court. It ordered their arrest and
detention in the prison near the Assize Court. With respect to the
length of time that the applicant had spent in pre-trial detention, it
held as follows:
"With regard to the reasonable time laid down in Article 5
para. 3 of the Convention (art. 5-3), failure to comply with
which could be sanctioned only by the release of the accused,
which he has not applied for, Mr Patrick Muller, who has been
in custody since 15 December 1988, stands accused of a number
of armed robberies committed within the jurisdiction of
three different tribunaux de grande instance and is currently
the main subject of a single judicial investigation, which was
made complicated by transfers and joinders and covered
twelve principal accused, co-principals and accomplices, all
members of one and the same criminal conspiracy.
Although the investigations were not perhaps conducted with
quite as much diligence as was desirable, we are satisfied from
the summary of the investigative measures in the investigating
judge's order of 9 August 1991 dismissing the accused's only
application for release, that the length of his detention has
not, to date, exceeded the authorised limit."
Having considered the information on the applicant's
personality, it also noted: "His conduct in detention, like his
brother's, has been deplorable owing to the influence he has exerted
on the other inmates by a policy of systematic protest."
15. In judgments dated 14 April 1992 the Court of Cassation
dismissed as being out of time the appeals on points of law brought by
Mr Muller, his brother and a co-defendant on 17 January 1992 against
the order committing them for trial at the Assize Court.
2. The trial proceedings
16. Owing to the suspensive effect of these appeals to the
Court of Cassation, the case could not be tried by the Assize Court
until the appeals on points of law had been heard.
17. In August and September 1992 the experts, other witnesses and
the civil parties were summoned to appear at the trial set down for
21 September 1992 at the Haut-Rhin Assize Court, whose president
examined the defendants on 7 September 1992.
18. On 18 September 1992 the defence lawyers applied for an
adjournment of the trial on the ground that they had not been able to
communicate with their clients since 12 September because of a
prison warders' strike. On 21 September the Assize Court granted their
applications and the trial was adjourned to the December session.
Fresh summonses to appear were served in November and the trial took
place on 7, 8 and 9 December 1992.
19. On 9 December 1992 the Haut-Rhin Assize Court convicted the
applicant and his brother and sentenced them to ten years' imprisonment
for armed robbery, attempted armed robbery, theft and conspiracy; four
other accused, on whom it passed a two-year suspended sentence; and a
fifth accused, who was given a three-year suspended sentence.
Mr Muller was released on 13 July 1996, the entire period he had spent
in pre-trial detention having been deducted from his sentence.
B. Proceedings relating to pre-trial detention
20. While the applicant was in custody pending trial, a number of
disciplinary penalties were imposed on him: a 25-franc fine in
November 1989 for producing an identity document from which the
photograph had been removed (he had given it to his wife during a
prison visit), a suspended sentence of four days' confinement to his
cell in April 1990 for refusing to allow himself to be searched when
leaving the prison visiting room and two days' solitary confinement in
July 1990 for "jeopardising public order or prison discipline".
On 24 October 1989 the governor of Strasbourg Prison had
reported to the investigating judge on the behaviour of the applicant
and his brother in prison.
1. The first extension of pre-trial detention
(12 December 1989)
21. After holding an adversarial hearing on the issue of detention
in the presence of the accused as required by law, the
Colmar investigating judge made an order on 12 December 1989 detaining
Mr Muller for a further period of one year from 15 December 1989 on the
following grounds:
"The offences with which the accused is charged - three armed
robberies and one attempt to commit armed robbery, carried out
within a period of three months - are particularly serious.
He did not hesitate to use his weapon and tied up a bank
manager while threatening him with it. In addition, he has
six previous convictions. He must therefore remain in custody
while the investigation continues in order to avoid his
reoffending or attempting to escape punishment."
2. The second extension of pre-trial detention
(4 December 1990)
22. On 4 December 1990 the investigating judge ordered an extension
of pre-trial detention for a further period of one year from
15 December 1990 on the following grounds:
"The accused admits that he has committed several robberies;
he has previous convictions for similar offences; and
investigations are continuing in order to establish the role
of each of the co-accused. In view of the sentence he faces,
the accused, Patrick Muller, is unlikely to appear for trial."
3. The first application for release
(6 August 1991)
23. On 6 August 1991 the applicant made an application for his
immediate release on the following grounds:
"(a) at no stage of the investigation has my behaviour
obstructed the ordinary course of justice;
(b) I admitted the offences even before I appeared before the
judge responsible for investigating my case;
(c) the investigation of this case by successive judges is
being protracted entirely because they persist in trying to
establish the guilt of persons unconnected with the offences
with which I am charged;
(d) I have been in custody for thirty-three months;
(e) had I been tried within a 'reasonable' time, I would have
received the following reductions of sentence:
(i) nine months for the bicentenary of the
1789 Revolution;
(ii) nine months granted by the President on the occasion
of Bastille Day;
(iii) three times three months' ordinary remission;
(f) had I been granted these reductions, I would have served
a term of five years;
(g) it is by no means certain that the sentence which the
Haut-Rhin Assize Court will pass will exceed the period I have
already spent in pre-trial detention."
The prosecution opposed his release for the following reasons:
"The accused is implicated in several armed robberies and he
has previous convictions for similar offences, so is an
habitual offender. He is unlikely to appear for trial in view
of the sentence he faces."
24. In an order of 9 August 1991 the Colmar investigating judge
refused the application in the following terms:
"In order to determine whether [the length of the pre-trial
detention ordered on 15 December 1988 exceeded the 'reasonable
time' referred to in Article 5 para. 3 (art. 5-3)], regard must
be had to the complexity of the proceedings and to the
accused's conduct during the investigation.
It must be observed that Patrick Muller is charged with
six armed robberies and attempted armed robberies committed
with his brother ... Although both accused have admitted the
offences, they have consistently sought to exculpate their
accomplices and their associates charged with
criminal conspiracy. That has meant that numerous
investigations, interviews and confrontations have been
necessary in order to establish the precise role of each of the
twelve accused in the proceedings, which have been particularly
complex owing to the number of offences with which the accused
were charged.
Furthermore, Patrick Muller refused to be taken from prison to
attend the confrontation on 29 October 1990, which consequently
had to be reorganised for 11 June 1991 with the accused
present. In addition, it was necessary to issue a warrant on
30 October 1990 for the arrest of L., who was not arrested
until 5 February 1991. Moreover, it is to be noted that
Patrick Muller has at no stage applied for release. Lastly,
the chronology of the main investigative measures [which he set
out] indicates that there were no interruptions in the
investigation.
...
Patrick Muller's application for release must be refused.
Mr Muller must be kept in custody, firstly, in order to ensure
that he appears for trial as, in view of the sentence he faces,
there is a risk of his absconding and, secondly, to prevent him
reoffending, since he has previous convictions for similar
offences."
25. On 29 August 1991 the Indictment Division of the
Colmar Court of Appeal upheld the refusal to release the applicant, as
follows:
"The defendant admitted, on his first appearances before the
investigating judges in charge of the cases concerning him,
that he had taken part in three armed robberies and
two attempted armed robberies committed between 1 July and
28 October 1988 in different banks in the Colmar area.
He also admitted stealing a number of cars used in the hold-ups
and being in possession of weapons used during them.
In the proceedings concerned he is one of twelve accused whose
actions have given rise to an investigation.
The various steps taken during the investigation are summarised
in the order appealed against, to which reference is made on
this point.
It is to be noted not only that the proceedings were
complicated by joinders and transfers of jurisdiction but also
that, in order to clarify the exact role and the degree of
involvement of the various co-accused in the offences with
which Patrick Muller is charged, it was indisputably necessary
to keep him in custody, given the risk of his putting pressure
on those persons or influencing what they said in their
statements.
The last confrontation took place in the investigating judge's
office on 11 June 1991 and it was necessary beforehand to
determine - a complex process - the exact role played by the
various accused.
The investigating judge sent the case to the public prosecutor
on 8 August 1991 with a view to making a disposal order.
Patrick Muller, whose detention was justified until the role
of all the accused involved in the hold-ups and the surrounding
events had been established, is consequently precluded from
claiming that the length of his pre-trial detention is
unreasonable and from using that as a ground for applying for
release.
Given the need to ensure that Patrick Muller, who in view of
the sentence he faces is likely to abscond, appears for trial,
and given the risk of his reoffending (which is all the greater
as he has previous convictions for similar offences), the
investigating judge was right in the circumstances to dismiss
the application."
26. On 18 December 1991 the Criminal Division of the
Court of Cassation dismissed the applicant's appeal on points of law
against that decision. It gave the following reasons in its judgment:
"It is noted in the judgment appealed against that
Patrick Muller was involved in a series of three armed
robberies and two attempted armed robberies committed between
1 July and 28 October 1988 in various banks in the Colmar area.
Twelve other persons have also been charged in connection with
the same matters.
Muller appeared before the court below and was assisted by his
counsel. With respect to his submission, repeated in the
ground of appeal, that there had been a violation of Article 5
para. 3 (art. 5-3) of the European Convention, the court found
that the proceedings had been complicated by joinders and
transfers of jurisdiction and by the need to clarify the exact
role and the degree of involvement of various co-accused in the
offences with which Patrick Muller was charged. It added that
the last confrontation had taken place on 11 June 1991 and that
the investigating judge had sent the case to the public
prosecutor on 8 August 1991 with a view to making a disposal
order; for those reasons, it held that the accused, Muller, was
precluded from claiming that the length of his detention had
been unreasonable.
In those circumstances the Indictment Division justified its
decision in law in respect of the provisions referred to in the
ground of appeal, which, calling into question as it does the
unfettered discretion of the courts of trial and appeal in
assessing the length of detention, cannot be allowed."
4. The second application for release
(18 September 1992)
27. On 18 September 1992 the applicant made his last application
to the Assize Court for release and at the same time applied for the
trial to be adjourned (see paragraph 18 above). He submitted that
there was every reason for him to appear for trial as he had a family
and could stay with his mother, and he complained of a failure to
comply with the "reasonable time" requirement of Articles 5 and 6 of
the Convention (art. 5, art. 6).
28. The Assize Court refused his application on 21 September 1992.
On 23 March 1993 the Court of Cassation dismissed the applicant's
appeal on points of law against that decision in these terms:
"It appears from the procedural documents that by a decision
of the Indictment Division of the Colmar Court of Appeal of
12 December 1991 which has become final, Patrick Muller was
committed to stand trial at the Haut-Rhin Assize Court on the
indictment [see paragraph 14 above]. The case was set down for
hearing on 21 September 1992. On that date the accused's
counsel sought an adjournment as he had been unable to
communicate with his client and also applied for the accused's
release.
In order to answer the submission that there had been a
violation of Article 5 para. 3 of the Convention (art. 5-3) on
the ground that pre-trial detention had exceeded a reasonable
time, the court below stated: 'In the instant case, in view of
its complexity and the number of offences with which the
accused is charged, this "reasonable time" has not been
exceeded'.
The Court of Cassation has no jurisdiction to review that
assessment of fact."
II. Relevant domestic law
29. The relevant provisions of the Code of Criminal Procedure on
pre-trial detention are the following:
Article 144
"In cases involving serious crimes [matière criminelle] and
other major offences [matière correctionnelle], where the
possible sentence is equal to or exceeds one year's
imprisonment in the case of an offence discovered during or
immediately after its commission [délit flagrant], 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, detention pending trial may be ordered
or continued:
(1) where detention of the accused pending trial is the
sole means of preserving evidence or material clues or of
preventing either pressure being brought to bear on
witnesses or victims, or collusion between accused and
accomplices;
(2) where such 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.
Detention pending trial may also be ordered, in the
circumstances set out in Article 141-2, where the accused
deliberately fails to comply with the obligations imposed by
court supervision."
Article 145
"In cases involving major offences [matière correctionnelle]
an order for detention of the accused pending trial may be made
at any stage of the investigation and must set out the legal
and factual reasons for the decision with reference to the
provisions of Article 144; the accused shall be informed orally
of the order and be given a full copy of it, receipt being
acknowledged by signature in the case file.
The provisions of the preceding paragraph shall [also] apply
to cases involving serious crimes [matière criminelle].
Whatever the classification of the offence, an
investigating judge who is considering detaining an accused
pending trial shall inform him that he has a right to the
assistance of counsel of his own choosing or assigned
officially. He shall also inform him of his right to have
adequate time for the preparation of his defence.
The chosen member of the Bar or, where an application has been
made for counsel to be assigned officially, the chairman of the
Bar shall be promptly informed of the detention by any
available means; mention of this formality shall be made in the
record of the judicial investigation. The lawyer shall be
entitled to inspect the case file immediately and to
communicate freely with the accused.
The investigating judge shall give his decision in chambers,
after an adversarial hearing at which he shall hear the
submissions of the public prosecutor, then the observations of
the accused and, if appropriate, of his counsel.
However, the investigating judge may not order the immediate
detention of the accused if he or his lawyer requests time for
the preparation of his defence.
In that case the investigating judge may, in an order that is
reasoned with reference to the provisions of the preceding
paragraph and against which no appeal shall lie, direct that
the accused be taken into custody for a fixed period, which may
in no case exceed five days. Within that period he shall again
have the accused brought before him and (whether or not the
accused is assisted by counsel) shall proceed as prescribed in
the fourth and fifth paragraphs. If he does not order
detention of the accused pending trial, the accused shall be
released.
Any period spent in temporary custody shall, where appropriate,
count as part of the period of detention pending trial for the
purposes of Article 145-1. Temporary custody shall be treated
as detention pending trial within the meaning of Article 149
of this Code and Article 24 of the Criminal Code."
Article 145-2
"In cases involving serious crimes [matière criminelle] an
accused cannot be held in detention for more than one year.
However, the investigating judge may, at the end of that
period, decide to prolong detention for a period not exceeding
one year in an order made in accordance with the provisions of
the fifth paragraph of Article 145 and renewable in the same
way. The order must set out, with reference to the provisions
of sub-paragraphs (1) and (2) of Article 144, the legal and
factual reasons for the decision.
The provisions of this Article shall apply until the
disposal order is made."
Article 147
"Whatever the classification of the offence, the accused may
be released, subject or not to court supervision, by means of
an order made by the investigating judge of his own motion
after the public prosecutor has submitted his observations,
provided that the accused undertakes to attend for procedural
purposes whenever required to do so during the investigation
and to keep the investigating judge informed of all his
movements.
The public prosecutor may also apply at any time for the
accused to be released. The investigating judge shall rule
within five days of such an application."
Article 148
"Whatever the classification of the offence, the accused or his
lawyer may at any time lodge with the investigating judge an
application for release, subject to his giving the undertakings
referred to in the preceding Article. 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 any civil party, who may submit observations.
The registrar shall record in the investigation file when and
by what means the information prescribed in this paragraph was
given.
The investigating judge shall take a decision, in an order
giving specific grounds as laid down in the first and
second paragraphs of Article 145, not later than five days
following communication of the file to the public prosecutor.
However, where a decision has still to be taken on a previous
application for release or on an appeal against an earlier
order refusing release, the five-day period will only start to
run on the date of the decision of the investigating judge or
Indictment Division.
Where release is granted, it may be made subject to court
supervision.
Where there is a civil party to the proceedings, the
investigating judge's order can only be made forty-eight hours
after notice has been given to that party.
If the investigating judge fails to give a decision within the
period laid down in the third paragraph, the accused may apply
directly to the Indictment Division, which after receiving the
Principal Public Prosecutor's reasoned submissions in writing,
shall decide within twenty days of the application to it,
failing which the accused shall be released unless an order has
been made for particulars of his application to be verified.
The public prosecutor is likewise entitled to apply to the
Indictment Division in the same eventuality."
Article 148-2
"Any judicial authority which has to rule, pursuant to
Articles 141-1 and 148-1, on an application for a
judicial supervision order to be discharged in whole or in part
or for release shall give its decision after hearing the
prosecution and the accused or his counsel; an accused who is
not in detention and his counsel shall be given notice by
registered letter at least forty-eight hours before the date
of the hearing.
The judicial authority to which the application has been made,
depending on whether it is an authority of first or
second instance, shall give its decision within ten or
twenty days of receipt of the application. However, where on
the date of receipt of the application a decision has still to
be taken on a previous application for release or on an appeal
against an earlier decision to refuse release, the ten- or
twenty-day period shall only start to run on the date of the
decision of the relevant judicial authority; if no decision has
been given by the end of that period, the judicial supervision
or detention pending trial shall be terminated and the accused,
unless detained for another reason, shall be released.
The investigating judge's decision shall be enforceable
immediately notwithstanding any appeal; where the accused
remains in detention, the Indictment Division shall give its
decision within twenty days of the appeal, failing which the
accused, unless detained for another reason, shall be
released."
Article 148-4
"When four months have elapsed since his last appearance before
the investigating judge or a judge delegated by the
investigating judge, an accused who is in custody or his
counsel may, provided no disposal order has been made, apply
for release directly to the Indictment Division, which shall
decide as laid down in the last paragraph of Article 148."
PROCEEDINGS BEFORE THE COMMISSION
30. Mr Muller applied to the Commission on 8 March 1993. He
complained of the length of his detention pending trial (Article 5
para. 3) (art. 5-3) and the criminal proceedings which had been brought
against him (Article 6 para. 1) (art. 6-1) and of an infringement of
his right to a fair trial.
31. On 22 February 1995 the Commission (Second Chamber) declared
the application (no. 21802/93) admissible solely with respect to the
complaint relating to the length of the detention pending trial and
declared the remainder inadmissible. In its report of 6 September 1995
(Article 31) (art. 31) it expressed the unanimous opinion that there
had been a violation of Article 5 para. 3 of the Convention (art. 5-3).
The full text of the Commission's opinion is reproduced as an annex to
this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1997-II), but a copy of the Commission's report is obtainable
from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
32. In their memorial the Government asked the Court to "dismiss
Mr Muller's application, alleging a violation of Article 5 para. 3 of
the Convention (art. 5-3), as being manifestly ill-founded".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 PARA. 3 OF THE CONVENTION
(art. 5-3)
33. Mr Muller submitted that the length of his detention pending
trial had infringed Article 5 para. 3 of the Convention (art. 5-3),
which provides:
"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 disputed that contention whereas the Commission
accepted it.
A. Period to be taken into consideration
34. The period to be taken into consideration started on
13 December 1988, when the applicant was taken into police custody, and
ended on 9 December 1992, when the Assize Court delivered its judgment
(see paragraph 19 above). It therefore lasted almost four years.
B. Reasonableness of the length of the detention
35. In order to assess whether continued detention is justified,
it falls in the first place to the national judicial authorities to
examine all the circumstances arguing for or against the existence of
such a requirement and to 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 undisputed facts stated 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 para. 3
(art. 5-3).
The persistence of reasonable suspicion that the person
arrested has committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but after a certain lapse of
time it no longer suffices: the Court must then establish whether the
other grounds given by the judicial authorities continued to justify
the deprivation of liberty. Where such grounds were "relevant" and
"sufficient", the Court must also ascertain whether the competent
national authorities displayed "special diligence" in the conduct of
the proceedings (see, as the most recent authority, the Van der Tang
v. Spain judgment of 13 July 1995, Series A no. 321, pp. 17-18,
para. 55).
1. Justification for the detention
36. The relevant authorities considered whether detention should
continue on four occasions - twice of their own motion, on
12 December 1989 and 4 December 1990, and twice on an application by
the applicant, on 6 August 1991 and 18 September 1992
(see paragraphs 21-28 above). As justification for deciding to
continue detention pending trial, they relied on both the seriousness
of the offences and the risk that the applicant would abscond or
reoffend. To justify refusing Mr Muller's applications for release,
they relied simultaneously on the complexity of the case, the needs of
the investigation and the risk that the applicant would collude with
his co-accused, abscond or reoffend.
(a) The complexity of the case
37. In the Government's submission, the case had been complex owing
to the seriousness of the offences and the number of people involved.
It had appeared necessary to detain Mr Muller until trial as he had
sought to clear his accomplices throughout the investigation, and the
last arrests had taken place on 5 February and 10 July 1991, that is
to say two years after the judicial investigation had begun.
38. The Court accepts that the investigation of the case was
complex in that it had been necessary to amalgamate the proceedings,
which had originally been conducted in three different jurisdictions
simultaneously (see paragraphs 6 and 8 above). It notes, however,that
as soon as he was arrested, Mr Muller had admitted the offences of
which he was accused.
(b) The risk of collusion
39. In the Commission's opinion, the applicant's confessions when
questioned and the fact that many other people had been charged in the
first few days of the investigation had reduced the risk of collusion
between the applicant and his co-accused.
40. The Court notes that the judge closed the
criminal investigation on 7 November 1991 and that on 12 December the
Indictment Division committed Mr Muller and his accomplices to stand
trial at the Haut-Rhin Assize Court (see paragraphs 13-14 above). The
risk of collusion between the persons involved must therefore have
disappeared by then (see, among other authorities, the Kemmache
v. France judgment of 27 November 1991, Series A no. 218, p. 26,
para. 54).
(c) Risk of the applicant's absconding and reoffending
41. The Government submitted that there had been no guarantee that
Mr Muller would appear for trial and that his release would have
entailed a risk of his absconding and reoffending.
42. In the Commission's opinion, the risk that he would abscond had
not been adequately established and the danger of his reoffending was
not, by itself, sufficient.
43. Like the Commission, the Court notes that it is not apparent
from the decisions not to release the applicant that there was a real
risk of his absconding. Although such a danger may exist where the
sentence faced is a long term of imprisonment, the Court points out
that the risk of absconding cannot be gauged solely on the basis of the
severity of the sentence faced (see, among other authorities, the
Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, p. 37,
para. 98, and the W. v. Switzerland judgment of 26 January 1993,
Series A no. 254-A, p. 16, para. 33).
44. As far as the danger of reoffending is concerned, a reference
to a person's antecedents cannot suffice to justify refusing release
(see, in particular, the Clooth v. Belgium judgment of
12 December 1991, Series A no. 225, p. 15, para. 40).
(d) Summary
45. In sum, by 7 November 1991 at the latest - when the order
closing the investigation with a view to a committal to the
Assize Court was made (see paragraph 13 above) - the detention in issue
had ceased to be based on relevant and sufficient reasons. It is
therefore necessary to consider the conduct of the proceedings.
2. Conduct of the proceedings
46. Mr Muller submitted that he should not have had to suffer the
consequences of the judicial authorities' decision to prosecute in a
single set of proceedings all the persons implicated in the crimes he
was alleged to have committed, especially as he had immediately
admitted the offences of which he had been accused - even before being
brought before the investigating judge - and had made only two
applications for release, which could not have impeded the smooth
progress of the proceedings.
47. The Government noted that instructions were still having to be
issued to the police at the end of 1990 and considered that the
replacement of successive judges had not hindered the normal progress
of the proceedings. The applicant had himself delayed the
investigation by refusing to attend a confrontation on 29 October 1990
and subsequently applying for the trial to be adjourned.
48. The Court observes that it was not until 18 September 1992 that
the trial was adjourned on account of the prison warders' strike and
that only a few weeks' delay had resulted (see paragraph 18 above).
Furthermore, it notes that the proceedings in issue included the
removal of two investigating judges from the case and the subsequent
replacement of the investigating judge on three occasions
(see paragraph 8 above). Whilst the joinder of the various sets of
proceedings was certainly necessary for the proper administration of
justice, the successive changes of judge - the first a year after the
investigation had begun, the other two after it had been under way for
two years - contributed to slowing down the investigation; that fact
was moreover recognised by the domestic courts (see paragraph 25
above). The judicial authorities did not act with all due expedition,
although the applicant had admitted the offences once and for all as
soon as the investigation had begun (see paragraph 6 above) and did not
thereafter make any application that might have slowed its progress.
The period spent by Mr Muller in detention pending trial therefore
exceeded the "reasonable time" laid down in Article 5 para. 3
(art. 5-3).
49. In conclusion, there has been a violation of Article 5
para. 3 (art. 5-3).
II. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
50. Article 50 of the Convention (art. 50) provides:
"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."
A. Damage
51. Mr Muller claimed compensation of 100,000 French francs (FRF)
for non-pecuniary and pecuniary damage. Because of his detention
pending trial he had been unable to benefit from any clemency measure
or to work or to attend any vocational training courses.
52. In the Government's submission, the applicant had not provided
any prima facie evidence of pecuniary damage and a finding of a
violation would provide sufficient compensation for any non-pecuniary
damage.
53. The Delegate of the Commission expressed no opinion.
54. The Court dismisses the claim relating to pecuniary damage as
it notes that in any event the length of the detention pending trial
was deducted from his sentence. With regard to non-pecuniary damage,
it considers that the present judgment constitutes sufficient
compensation.
B. Costs and expenses
55. Mr Muller sought reimbursement of his costs and expenses,
namely FRF 60,300, incurred in the proceedings before the French courts
and the Convention institutions.
56. The Government argued that no vouchers had been produced in
support of the claim.
57. The Delegate of the Commission expressed no view.
58. On the basis of the information in its possession and its
case-law, the Court awards the applicant FRF 40,000 for costs and
expenses, principally those incurred in Strasbourg.
C. Default interest
59. According to the information available to the Court, the
statutory rate of interest applicable in France at the date of adoption
of the present judgment is 3.87% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 5 para. 3 of
the Convention (art. 5-3);
2. Holds that the present judgment in itself constitutes
sufficient just satisfaction in respect of the non-pecuniary
damage sustained by the applicant;
3. Holds that the respondent State is to pay the applicant, within
three months, 40,000 (forty thousand) French francs for costs
and expenses, on which sum simple interest at an annual rate
of 3.87% shall be payable from the expiry of the
above-mentioned three months until settlement;
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 17 March 1997.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar