In the case of Selmouni v. France,
The European Court of Human Rights, sitting, in accordance with Article 27 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"), as amended by Protocol No. 11, and the relevant provisions of the Rules of Court2, as a Grand Chamber composed of the following judges:
Mr L. Wildhaber, President,
Mr L. Ferrari Bravo,
Mr G. Bonello,
Mr L. Caflisch,
Mr P. Kuris,
Mr J.-P. Costa,
Mr W. Fuhrmann,
Mr K. Jungwiert,
Mr M. Fischbach,
Mr B. Zupancic,
Mrs N. Vajic,
Mr J. Hedigan,
Mrs W. Thomassen,
Mrs M. Tsatsa-Nikolovska,
Mr T. Pantîru,
Mr R. Maruste,
Mr K. Traja,
and also of Mrs M. de Boer-Buquicchio, Deputy Registrar,
Having deliberated in private on 18 March, 24 June and 7 July 1999,
Delivers the following judgment, which was adopted on the last-mentioned date:
The Commission's request referred to former Articles 44 and 48 and to the declaration whereby France recognised the compulsory jurisdiction of the Court (former Article 46); the Netherlands Government's application referred to former Article 48. The object of the request and 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 Articles 3 and 6 § 1 of the Convention.
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, Assistant Director of Human Rights,
Legal Affairs Department,
Ministry of Foreign Affairs,
Mrs F. Doublet, Head of the Comparative and International
Law Office, Civil Liberties and Legal Affairs
Department, Ministry of the Interior,
Mr J.-C. Muller, Department of Criminal Affairs
and Pardons, Ministry of Justice, Advisers;
(b) for the applicant
Mrs M.-A. Canu-Bernard, of the Paris Bar, Counsel;
(c) for the Commission
Mr D. Šváby, Delegate.
The Court heard addresses by Mr Šváby, Mrs Canu-Bernard and Mr Dobelle.
A. The origin and the filing of the complaint
"Date of examination: 26 November 1991. 3.15 a.m. Attends casualty complaining of assault. On examination, several superficial bruises and injuries found on both arms. Bruises on outer left side of face. Bruise on left hypochondrium. Marks of bruising on top of head. Chest pains increase with deep respiration. Neurological examination shows no abnormalities."
"Bruising to the left eyelid, left arm, lower back. Scalp painful."
"Substantial bruising to the left eyelid, left arm, lower back. Bruising to the scalp. Ate nothing yesterday … Complaints forwarded."
"Bruising to the left eyelid, left arm, lower back. Bruising to the scalp. No current treatment."
"Headaches, bruises under left and right eyes, on left and right arms, back, thorax, left and right thighs and left knee. All areas painful."
"… extensive bruising to the trunk and thighs and substantial bruising round the eyes. Presents conjunctival bruises. Says sight impaired in left eye."
"I was stopped in the street on 25 November 1991 at about 9 a.m. There were no problems at that stage. I was taken to the hotel where I was living. One of the six plain-clothes policemen then hit me in the area of my left temple. I was then taken to Bobigny police station. At about 10 a.m. I was taken up to the first floor, where about eight people started hitting me. I had to kneel down. One police officer pulled me up by my hair. Another policeman hit me repeatedly on the head with an instrument resembling a baseball bat. Another one kept kicking and punching me in the back. The interrogation continued non-stop for about an hour. In the night I asked to be examined. I was taken to hospital, where I had head and chest X-rays. I was hit again at about 9 p.m. the following day during a further interrogation and this went on until 2 a.m. When I arrived at Fleury, I underwent a medical examination."
– "sub-orbital haematoma extending 2 cm below the left lower eyelid, purplish, almost completely healed,
– thin linear scar, approximately 1 cm long, continuing the line of the left eyebrow,
– one right sub-orbital haematoma, almost completely healed,
– multiple skin abrasions (six of which are large), almost completely healed, on the left arm,
– two 5 cm linear skin abrasions – possibly scratches – on the right arm,
– 0.5 cm skin lesion on the back of the right hand,
– haematoma on the back of the thorax, over the right shoulder blade,
– one haematoma on the right side,
– severe (10 cm by 5 cm) haematoma on the left side of the thorax,
– three haematomas on the left side,
– severe (5 cm by 3 cm) haematoma on the front of the thorax, purplish, in the epigastric region,
– haematoma in the right prehepatic region,
– haematoma on the left of the ribcage 5 cm below the nipple,
– 5 cm by 3 cm haematoma on the left side on the axillary line,
– haematoma in the right subclavian region,
– haematoma on the right buttock,
– 10 cm by 5 cm haematoma on the left buttock,
– 5 cm by 1 cm linear haematoma on the outer front part of the left thigh,
– skin abrasion corresponding to a wound, now healing, on the front of the right ankle,
– swelling on the back of the right foot and a skin abrasion on the back of the foot,
– five superficial wounds, now healing, on the lower front part of the right leg,
– skin abrasions and bruised swelling on the back of the first two metacarpals of the left hand.
The patient states that on his arrival at Fleury he was treated with skin cream and given painkillers.
No injuries to the scalp or left eyeball …"
Mr Selmouni states that he was subjected to ill-treatment while in policy custody.
He presents lesions of traumatic origin on his skin that were sustained at a time which corresponds to the period of police custody.
These injuries are healing well."
"… At about 8.30 p.m. on 25 November 1991 I was arrested in the vicinity of my hotel, the Terminus Nord, near the Gare du Nord in Paris by two or three plain-clothes policemen. They pushed me against a wall while pressing the barrels of two guns against my neck.
I offered no resistance to my arrest and did not struggle.
You remind me that during questioning on 27 November 1992 I admitted that I had attempted to escape arrest. I dispute that. First of all, I maintain that I did not make such a statement to the police officer who questioned me and, moreover, I signed the records of interview without having read them. The policeman told me on my release from police custody that he had got me to sign that I had resisted arrest and that they were covered.
I was alone when I was arrested and immediately afterwards I was taken to my hotel room, which was searched in my presence. Two other policemen were already there.
While they were searching my room, the youngest police officer of the group punched me on the left temple. When they had finished searching my room I was taken to the Drugs Squad station in Bobigny and to an office on the first or second floor.
After I had been subjected to a body search, during which everything in my possession was taken, my interrogation by five police officers began.
One of them, who appeared to be in charge, made me kneel on the floor and began pulling my hair while another one hit me in the ribs with a stick resembling a baseball bat.
He then kept tapping me on the head with the bat.
The three other police officers were also actively involved, punching me and some of them standing on my feet and crushing them.
I seem to recall arriving at Bobigny police station at about 10 p.m. The treatment I have described continued until 1 a.m.
Following that first interrogation I was handed over to uniformed policemen on the ground floor of the building in which I was detained. As my ribs and head were hurting from the blows I had received, I informed these policemen and was taken in the night to a hospital in the area, but cannot say which one. There I underwent several examinations, including X-rays, and was later taken to a police station, but not the one to which I had first been taken.
The uniformed police officers treated me decently.
The following morning, before being questioned a second time, I was examined on the premises of the Drugs Squad by a doctor, who was able to see the marks on my body caused by the policemen's brutality.
On 26 November 1992 I was questioned again by several police officers – three or four – at some point in the day. I believe it was at about 10 a.m. On that occasion they pulled my hair, punched me and hit me with a stick.
In the evening of the same day, when there were fewer staff on the first floor, I was questioned again by six police officers, who were particularly brutal to me. I was punched, and beaten with a truncheon and a baseball bat. They all carried on assaulting me until 1 a.m. I think that this session of ill-treatment had begun at about 7 p.m. At one point they made me go out into a long office corridor where the officer I presumed was in charge grabbed me by the hair and made me run along the corridor while the others positioned themselves on either side, tripping me up.
They then took me into an office where a woman was sitting and made me kneel down. They pulled my hair, saying to this woman 'Look, you're going to hear somebody sing'.
I remained there for about ten minutes. I cannot describe this woman to you, but she looked young.
I was then taken back out into the corridor, where one of the police officers took out his penis and came up to me saying 'Here, suck this'; at that point I was on my knees. I refused, keeping my mouth closed because he had brought his penis up to my lips.
When I refused, that officer urinated over me at the suggestion of one of his colleagues.
After that, I was taken to an office and threatened with burns if I did not talk. When I refused, they lit two blowlamps which were connected to two small blue gas-bottles. They made me sit down and placed the blowlamps about one metre away from my feet, on which I no longer had shoes. At the same time they were hitting me. Following that ill-treatment, they brandished a syringe, threatening to inject me with it. When I saw that, I ripped open my shirt-sleeve, saying 'Go on, you won't dare'; as I had predicted, they did not carry out their threat.
My reaction prompted a fresh outburst of violence from the policemen and I was ill-treated again.
The police officers left me in peace for about fifteen minutes, then one of them said 'You Arabs enjoy being screwed'. They took hold of me, made me undress and one of them inserted a small black truncheon into my anus.NB. When Mr Selmouni relates that scene, he starts crying.
I am aware that what I have just told you is serious, but it is the whole truth, I really did suffer that ill-treatment.
After the sexual assault, I was put into a cell again.
The next day I was examined by a doctor, who was able to observe my condition.
I had informed the doctor that the policemen had been assaulting me and I had even asked him to tell them to stop torturing me.
The violence I have just described was committed during the nights of 25 to 26 and 26 to 27 November 1991.
Thereafter, until I was brought before the investigating judge, I was occasionally punched.
Before bringing me before the investigating judge, the policemen were very kind, even going so far as to offer me coffee.
When I signed the papers concerning my belongings, I noticed that 2,800 guilders and a Dupont lighter had disappeared. I informed a policeman about this – the one I thought was in charge – who replied 'Shit, again', and the matter was left at that.
The lighter bears the initials A.Z.
I can identify the six policemen who hit me.
I can also describe the part played by each one.
The officer in charge is slightly balding. The one who showed me his penis and then sodomised me with a truncheon is of medium height, fairly thickset, aged 30 to 35, and fair-haired.
As soon as I was brought before the investigating judge, I told him that I had been assaulted, and a few days later I was examined at the prison. However, on the actual day I was brought before the investigating judge I had seen a doctor at the Bobigny law courts.
I have had a lawyer for one month and have informed him of the manner in which I was treated while in police custody.
When I arrived at the prison, the marks left by the assault were all over my body. I now have trouble with my eyes.
I am lodging a complaint against the policemen."
B. The investigation proceedings
"When I first examined Mr Selmouni, he stated that he had been assaulted while in police custody. He has told me today that he did not mention the sexual assault on that occasion because he felt ashamed of it.
An examination of the anal sphincter does not reveal any lesion such as to corroborate or invalidate the patient's statements, mainly owing to the amount of time which has elapsed since the alleged acts.
The somatic lesions recorded in the previous medical certificate are healing well with no complications.
As regards the alleged sexual assault, in the absence of any functional repercussion or visible injury, no sick-leave on grounds of total unfitness for work ['ITTP'] is necessary as a direct result of the alleged acts.
TOTAL UNFITNESS FOR WORK
The lesions recorded in the first medical certificate and observed when I prepared my first expert report are traumatic lesions with no serious features (haematomas and bruises) and necessitate an ITTP of 5 days.
Mr Selmouni states that he was sexually assaulted and beaten while in police custody.
The traumatic lesions necessitated an ITTP of 5 days. The patient states that his sight in his left eye is impaired. An examination by an eye specialist is necessary if a causal link with the alleged acts is to be established.
As regards the sexual assault, in the absence of any visible injury and any functional repercussions, an ITTP is not necessary."
"assault by public servants occasioning total unfitness for work for more than eight days and sexual assault by several assailants or accomplices, against any persons identified as a result of the investigation".
"1. Mr Selmouni's eyesight has deteriorated since he was operated on in September 1995. It cannot be said with certainty that it really deteriorated between 25 November 1991 and the end of September 1995.
"An examination of the medical file shows that doctors found a progression of injury marks on the patient's body during the period in police custody.
A number of them could certainly have been caused during a 'struggle' when the patient was arrested at approximately 8.30 p.m. on 25 November 1991, as described by the CID officers in question.
The injuries, particularly those on the lower limbs and buttocks, which were not seen on the first examination, would certainly have been sustained after that arrest and support the patient's statements.
As regards the acts of sodomy described by the patient, the negative result of the test carried out on 9 June 1993, that is one and a half years after the initial facts, neither disproves nor proves that they occurred."
" … the denials by the police officers concerned do not stand up to examination any more than does their reference to a 'struggle' when effecting the arrest or to forceful resistance during questioning.
The absence of any variation or inconsistency in the statements made by Ahmed Selmouni and Abdelmajid Madi justifies taking them into consideration. They are, moreover, corroborated by medical findings and therefore amount to sufficient evidence against the five persons in question for the allegations to be examined by the trial court …"
(a) as to classification of the sex offence as rape:
" … The Court must, however, conclude that neither the medical certificates nor the expert reports support the allegation of anal penetration. Furthermore, Selmouni was unable to identify the police officer who had allegedly raped him. Accordingly, the offence cannot be classified as rape."
(b) as to classification of the assault as assault occasioning permanent disability:
" … The Court observes that the expert report prepared by Dr Biard does not allow a causal link to be established between Mr Selmouni's loss of visual acuity and the blows he received. This point of his objection therefore cannot be allowed."
(c) as to classification of the ill-treatment as acts of torture inflicted before or during the commission of a crime:
"Apart from the fact that those acts were not so classified in the former Criminal Code applicable at the material time, in the instant case the acts of violence inflicted on Ahmed Selmouni which he alleges should be classified as acts of torture or barbarism were not inflicted before or during the commission of a crime.
The Court therefore considers that the acts in question cannot be classified as a crime …"
" … in his capacity as Detective Chief Inspector in charge of the group of police officers, Bernard Hervé was responsible for the methods used to conduct the investigation under his control and direction. In addition, he had been directly involved in the assault since he had pulled the civil parties' hair. The civil parties had unequivocally identified him as the officer in charge.
The Court therefore deems it necessary to punish Bernard Hervé more severely for his actions and sentences him to four years' imprisonment.
As Mr Hervé is still in a position of responsibility, it is necessary, as a matter of public policy, that sentence be executed immediately. The Court issues a warrant for Bernard Hervé's arrest."
"… the offences in question, because of their exceptionally serious nature having regard to the status of senior police officer [officier de police judiciaire], responsible for enforcing the laws of the Republic, possessed by the accused, who was convicted at first instance, have resulted in serious and continuing prejudice to public order …"
"As to guilt
As to the assaults
In absolute terms the word of a policeman, a fortiori that of a senior one [officier de police judiciaire] is more credible than that of a drug trafficker. That premiss, however, is weakened, and even made unsound, where statements by offenders are supported by external evidence such as medical findings. It is put even more in doubt where the explanations provided by the policemen vary significantly during the course of the proceedings; and the presumption in favour of the police is destroyed if it is shown, as in the instant case, that the police reports do not reflect the truth.
As to the medical findings
The accusations made by the civil parties are supported by unequivocal medical findings. In the first place, as regards Selmouni, the expert Professor Garnier noted in his report of 5 May 1998 that all the doctors who had examined him while he was in police custody had found lesions of traumatic origin on the left arm, in the left orbital region, on the scalp and on the back. On 29 November 1991 further lesions were seen on the lower limbs. He added that during his examination on 7 December 1991 he had again found lesions that had been described earlier and that he found others on the buttocks and on the right ankle.
The extent of the injuries on Selmouni's person increased as the uninterrupted police custody continued.
The bruising to the left eyelid, the thin linear scar one centimetre long continuing the line of the left eyebrow, the left and right sub-orbital haematomas found on 29 November 1991 by Dr Edery, and then described on 2 December 1991 by Dr Nicot as being 'round the eyes', are consistent with the punching mentioned by Selmouni.
The various haematomas found on the thorax, the left and right sides and the abdomen are consistent with the punching and kicking in his statement of 7 December 1991.
The pain in the scalp and the headaches mentioned by Drs Aoustin and Edery are likewise of a kind to support Selmouni's statements, according to which his hair was pulled and he was repeatedly tapped on the head with an instrument which could have been a baseball bat.
The haematomas found on the buttocks and the thighs could only have come from blows from a blunt instrument. Similarly, the lesions apparent on the legs, ankles and feet are consistent with the blows or crushing that Selmouni complained of.
It follows from the foregoing that the objective injuries, as recorded in successive examinations, match the blows described by Selmouni.
As regards Madi, the medical certificates and the expert medical opinions attest to the reality and intensity of the blows he sustained. Further, as set out by the expert, the time that elapsed between the appearance of the objective injuries and the events in issue strongly suggests repeated small injuries.
The scalp abrasions are absolutely consistent with his statement that on numerous occasions he was repeatedly struck on the head with a blunt instrument.
The rectangular shape of the large haematoma on the right thigh and of the three haematomas on the left thigh corresponds exactly to blows struck with a blunt instrument, as described by the complainant.
As to the accounts given by the defendants
The defendants' explanations of how the injuries found came about totally lack credibility. Moreover, on these points as on others, their explanations varied. Jean-Bernard Hervé, for instance, initially stated that he had acted as a reinforcement to arrest Selmouni (D57) but subsequently said that he was not in the street where the arrest took place but inside the hotel.
The defendants maintain that the accusations against them are the result of orchestrated, concerted action. It should be noted at this point that throughout the seven years of inquiries and judicial investigation no evidence was found to substantiate that allegation. The complainants' interests differed appreciably. The successive descriptions of the ill-treatment they alleged that they had suffered do not disclose any connivance, and it should be pointed out that Selmouni himself was hardly ever assisted by a lawyer in the proceedings concerning drug trafficking.
It is not without relevance to note that Madi and Selmouni, who had never been in police custody before, could not have made use of previous experience of it to fabricate a completely false story.
The mere fact of Selmouni's arrest near his hotel, even if it is assumed to have entailed something of a struggle, cannot explain either the seriousness of the injuries or their gradual onset as confirmed by the photographs in the file, seeing that, immediately afterwards, the policemen concerned did not record any suspicious signs either on their own persons or on that of Selmouni, signs that would have warranted a thorough medical examination, which would have been in their own interest.
As regards Madi, the policemen's account, according to which he had deliberately banged his head against a wall and a cupboard, is not consistent with the findings of the medical examinations.
The expert noted that in this type of occurrence it is normal to find, at the time of the events, unequivocal injuries and even bleeding wounds, which was not the case here.
Taken as a whole, these factors persuade the Court that the alleged resistance to arrest was invented by the accused to justify the seriousness and location of the haematomas and the lesions found on the detainee.As to the reliability of the police reports
The policemen from SDPJ 93, in particular Jean-Bernard Hervé, admitted in court that several reports drawn up during the detention of Selmouni and Madi in police custody contained inaccurate statements both as to times and as to the identity of those who had written them. No persuasive logical explanation of this was given to the Court. Hurault, for example, drew up a report (D114) on the search which he made at Gonesse from 5.30 p.m. to 6.55 p.m. on 26 November, and 'recorded' at 6.45 p.m. – that is to say at the same time – in another report (D158) that Madi had resisted arrest, and also told the Court that he had intervened to calm him.
The complete unreliability of the documents drawn up by the investigators is extremely serious in that the entire functioning of the criminal justice system rests on the reliance that may be placed on the reports of senior police officers and their assistants [officiers et agents de police judiciaire].
In view of all the foregoing, the brutality of which the defendants are accused is patent and the trial court rightly held that during the proceedings they had done nothing but conceal the truth about their behaviour.
…As to the sentence
The offences of which the defendants are guilty are exceptionally serious ones, and that precludes their benefiting from the provisions of the amnesty of 3 August 1995. They must be regarded as instances of particularly degrading treatment. Having been committed by senior officials responsible for enforcing the laws of the Republic, they must be punished firmly as such conduct cannot be justified, irrespective of the personality of the offenders in their charge and the degree of their corruption and dangerousness.
The seriousness of the offences, however, cannot be compared with what it would have been if the sexual assaults had been made out against the defendants. Nor do the offences appear to have been the result of a concerted plan. In view of the part played by each, the absence of any previous criminal record and the administrative files on the defendants, the Court considers that it must accordingly reduce the length of the prison sentences as indicated in the operative provisions of the judgment and leave it to the discretion of the defendants' superiors to determine what disciplinary consequences are necessary in the case, the prison sentences being suspended, only in part as regards Hervé, whose responsibility appears greater, regard being had to his being the officer in charge.
PROCEEDINGS BEFORE THE COMMISSION
FINAL SUBMISSIONS TO THE COURT
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
A. The Government's preliminary objection
The Government argued that the present case was distinguishable from the Mitap and Müftüoglu v. Turkey case referred to by the Commission in its decision on admissibility (applications nos. 15530/89 and 15531/89, decision of 10 October 1991, Decisions and Reports (DR) 72, p. 169) and the cases of Tomasi v. France (application no. 12850/87, decision of 13 March 1990, DR 64, p. 128) and Ringeisen v. Austria (judgment of 16 July 1971, Series A no. 13), in which it had been acknowledged that the last stage of domestic remedies had been reached shortly after the lodging of the application but before the Commission had been called upon to decide on admissibility. Not only had the Commission not followed its usual case-law but, furthermore, the Mitap and Müftüoglu case had concerned the length of the proceedings and not an alleged violation of Article 3.
The Government submitted that the excessive length of time taken to examine the applicant's complaint could not ipso facto lead to a finding that the remedy was ineffective; that due consideration should be given in the present case to the fact that the police officers in question were having to answer for their acts before the national criminal courts; and that the application brought before the Court was therefore premature.
The Court notes that the circumstances of the case show that there were a number of other delays which should be considered. Almost a year elapsed between the medical examination on 7 December 1991 (see paragraph 18 above) and the interviewing of the applicant by the National Police Inspectorate (see paragraph 24 above); thereafter, again nearly a year elapsed between the opening of a judicial investigation (see paragraph 29 above) and the holding of an identity parade of the police officers (see paragraph 38 above); and two years and over eight months elapsed between the date on which they were identified and the date on which they were placed under investigation (see paragraph 50 above). The Court observes, like the Commission, that five years after the events no one had been charged, despite the fact that the police officers accused by the applicant had been identified. Moreover, the police officers did not finally appear before the Criminal Court (see paragraph 58 above) until almost five years after they had been identified and seven years after the period of police custody in question.
B. Merits of the complaint
1. The Court's assessment of the facts
Firstly, the Court considers, unlike the Commission, that it is required to rule on those of the allegations in Mr Selmouni's statements that are not supported by the medical reports. In that connection, it notes that in their defence observations the Government, while wishing to concentrate on the issue of the admissibility of the application, submitted arguments in the alternative on the seriousness of the facts and the ways in which they might be classified under Article 3 of the Convention. In those observations the Government debated the seriousness of the alleged injuries in the light of Dr Garnier's second report (see paragraph 31 above) and the report produced by the eye specialist, Dr Biard (see paragraph 46 above). Thus, notwithstanding these arguments submitted in the alternative, the Government did not at any time contest the other facts alleged by Mr Selmouni. The Court points out, as a subsidiary consideration, that those facts were taken as established both by the Criminal Court – excepting the allegations of rape and loss of visual acuity (see paragraphs 59-61 above) – and by the Versailles Court of Appeal, excepting the sexual assaults (see paragraph 65 above).
2. The gravity of the treatment complained of
The applicant submitted that he had been subjected to both physical and mental ill-treatment. In his view, it was well known that such police practices existed, and that they required preparation, training and deliberate intent and were designed to obtain a confession or information. He argued that, in the light of the facts of the case, the severity and cruelty of the suffering inflicted on him justified classifying the acts as torture within the meaning of Article 3 of the Convention.
In any event, they contended in the light of both the Court's case-law (see the Ireland v. the United Kingdom, Tomasi and Aydin judgments cited above) and the circumstances of the case that the ill-treatment allegedly inflicted by the police officers did not amount to "torture" within the meaning of Article 3 of the Convention.
"1. For the purposes of this Convention, the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. …"
"1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in Articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment."
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
"1. In the determination of his civil rights and obligations …, everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …"
A. Period to be taken into consideration
B. Reasonableness of the length of the proceedings
1. Arguments before the Court
With regard to the conduct of the judicial authorities, the Government submitted that the investigation had been conducted without interruption until 1 March 1994, the date on which the Bobigny investigating judge had sent the file to the public prosecutor's office. During the phase when the case was pending in a different court the authorities had also acted diligently. After 22 June 1994, the date on which an investigating judge at the Versailles tribunal de grande instance was appointed, the Government admitted that there had been delays in the conduct of the case, but submitted that they were not attributable to the investigating judge alone.
The Government did not dispute that the overall length of the proceedings had been excessive, whereas the seriousness of the allegations had undoubtedly called for special diligence throughout the investigation.
2. The Court's assessment
(a) Complexity of the case and conduct of the applicant
(b) Conduct of the judicial authorities
Irrespective of the Government's acknowledgment that, regard being had to the seriousness of the alleged facts, the overall length of the proceedings was excessive (see paragraph 114 above), the Court considers that its conclusions with regard to the admissibility of the complaint based on Article 3, in particular the finding that a number of delays were attributable to the judicial authorities (see paragraph 78 above), result in a finding that this complaint is well-founded.
Accordingly, there has been a violation of Article 6 § 1 of the Convention on account of the length of the proceedings.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."
B. Request for transfer to the Netherlands
C. Costs and expenses
D. Default interest
E. Request for a declaration that the sums in question should be exempt from attachment
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 28 July 1999.
Maud de Boer-Buquicchio
Note 3 . Note by the Registry. Rules of Court A applied to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and from then until 31 October 1998 only to cases concerning States not bound by that Protocol. [Back] Note 4 . Note by the Registry. For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry. [Back]
Note 3 . Note by the Registry. Rules of Court A applied to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and from then until 31 October 1998 only to cases concerning States not bound by that Protocol. [Back]
Note 4 . Note by the Registry. For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry. [Back]