APPLICATION N° 25803/94 Ahmed SELMOUNI v/FRANCE DECISION of 25 November 1996 on the admissibility of Ilie application Article 3 of the Convention Allegations of ill-lieaiment inflicted dunng police iintody (Complaint detluwd udmissibU') Article 6, paragraph 1 of the Convention Lenqth of ciiniinal pioceedings with application to join the pioceedmgs as a civil patty \eekini> damages, still pemling (Complaint declaied adniissthle) Article 6, paragraphs 1 and 3 of the Convention u) The question whethei a tiiul is in confoimity with the leqiiiiements of Article 6 paia I must he considewd on the basis of an examination oj (he pioceedmgs as a nhole and not one isolated aspect This pnnciple applies both to the specifii \>uaiantec\ iindei paun^iaph ^ and to (he concept ojafaii tnal under paia^iaph I of Article 6 h) Alleqations offailuie to assign a tawvei to assist the applicant dunng the judicial investigation and bejoie the Couit of Appeal Article 26 of the Convention a) Exhaustion of domeslit icnwdies lequues exhaustion of siah lemedies as lelute to the breaches of the Conwnlion alleged and at the same time can piovide effective and sufficient lediess An applicant does not need (o exeicise leniedies which, although theoieticalh of a natuie (o constitute letnedies do not in lealily offei anv chance of led/essim; the allei^ed hieach 55 b) The huiden of pio\ing the existence of efjeitise. sufficient and (;<.(.CM\j/»/t' leniedies lies upon the State unokini^ non-exhaustion of domestic leniedies c) This pioMSion must he applied with some degiee of flexihilily with due legaid to the context and without excessive foimalism d) Domestic lemedies have been exhausted if, befoie the hiqhesl domestic authority, the applicant has submitted the complaint he puts befoie the Commission e) W'heie the national authoiities leniain passive in the fate of senous alleqations of misconduct oi mfiniion of haitn h\ State agents this is a iele\a>it ciitenon in ahsohing the applicant fioni the obligation to exhaust domestic lemedies Ciicumstances in which the speed with which a lemedy can be exercised mav be a Ielevant factor in assessim^ its effectiveness Complaints lelafinq to violence (o w Inch (he applicant was alleged!) subjected bv police offueis while in then custody and to the lein>th of ciiminal pioceedmgs brought aftei the applicant hud filed a ciinnnal complaint with a icquest to join the pioceedinqs as a civil parts seeking damaqes Havuiq leqaidto the senousness of the allegations and the fact that no cme has been chaiged five yeais latei. the applicant has satisfied the lule of exhaustion of domestic ivniedivs THE t A C iS The applicant, of Dutcli and Moroccan nationahly, born in 1942, is currently m Monimedy Prison The facts, as submitted by the parties may be summarised as follows I Criminal pioceedmgs a{;aiii\t the applicant On 21) November 1991 the police arrested G T. D K and his girlfriend H C in connection u ith a drug trafficking investigation D K confessed volunlarily and told the police that he had bought his heroin in Amsterdam from a certain "Gaby", who had helped him conceal it in order to bung it into France ovei a number of trips He gave the police a telephone number in Amsterdam which enabled them to identify the applicant On 25 November 1991 ilii; applicant was arrested in a surveillance operation of a hotel in Pans The appln-ani. who was recognised by D K and H C , explained that he had had business dealings wiih D K in the clothes trade He denied any involvement in drug trafficking 50 The applicant was held in police custody Irom 25 to 29 November 1991, whereupon he was brought before an investigating judge in Bobigny. Mr de L, who charged him with offences under the drugs legislation and remanded him in custody The invesiigalingjddge extended the detention on remand bv orders of ) 9 March and? July 1992 In an order of 8 September 1992. the investigating judge committed the applicant for tnal before the Criminal Court and ordered him to be kept in detention on remand Dunng the investigation, the President of the Bar Council assigned a lawyer lo act for the appikant and the applicant also relamed the serv ices of three other lawyers of his own choice Bobigny Criminal Court hrsl convened on 16 October 1992 and adjourned the case to a hearing on 30 November 1992 at which the applicant was represented by two lawyers The applicant argued that the proceedings were void on the ground that the warrants issued by the invcstig iting judge, whn.h had enabled the police to arrest him, were not on the case hie In a judgment of 7 December 1992 Bobigny Criminal Court dismissed the application for the proceednigs to be declared void, noting that a certihed copy of the WiUrants had l>een attached to the hie The court sentenced the applicant to fifteen years' imprisonment to perniaiiLiU exclusion trom French territory and regarding the civil action by the customs authorities ordered him to pay. jointly and severally with his CO accused an aggregate fine of twenty-four million francs I he applicant appealed On 3 September 1993 he sent a letter lo the President of the Court of Appeal setting out his grounds of defence The letter began as lollov^ s I write to inform you that, as I cannot afford a lav,y<„r 1 have no alternative but to attend the hearing before Pans Court ot Appeal on 16 September 1993 alone I wanted to send your Honour this letter before appearing befoie you In a judgment of 16 September 1993, Pans Court of Appeal noted that the applicant had appeared without legal representation and that he did not wish to be represented It reduced the prison seiileiice to thirteen years and upheld the remainder of the lower court judgment Dunng the hearing, one of the applicant s co defendants, A M , admitted the charge and iniphcated the applicant The applicant appealed on points of law On 7 October 1993 he was granted provisional legal aid and a Court of Cassation lawyer was assigned to him immediately 57 On 13 December 1993 the registry of the Criminal Division ot the Court of Cassation informed the applicant that his personal pleadings had arrived at the registry on 29 November 1993 and that they had been attached to the case file In diese pleadings, the applicant criticised the failure to provide him with legal representation dunng the investigation and betore the Court of Appeal and denied having committed the offence of which he had been convicted On 12 January 1994 the applicant's officially assigned lawyer sent him a copy of the grounds of apjjeal drafted on his behalf These grounds invoked Article 6 paras 1 and 3 of the Convention, in that the Criminal Court had dismissed the application for the proceedings to be decUu-ed void, despite the fact that no certified copy of the warrants had been produced during the proceedings On 10 February 1994 the applicant was definitively aw.irded legal aid In ajudgment of 27 June 1994. the Court of Cassation dismissed the appliLant's appeal, on the grounds ' that neither the judgment under appeal, nor the appell uu s grounds of appeal, show that he had raised, before the Court of Appeal, the argument submitted to the lower court, namely that the proceedings were void , in the circumstances, and given that contrary lo the appellant's allegations both parties were given an opportunity to comment on the document in question on appeal, without this giving rise to any dispute this ground of appeal, which is new and has no basis in fact cannot be allowed 2 The applicant's ciinnrial complaint and request to join the pioceedinqs as a cixil party seeking damaqc s From 25 to 29 November 1991 the applicant was held m police Lustody and questioned by the police officers of the SDPJ 93 in Bobigny On 29 November 1991 a doctor exanuned the applicant while he was in police custody and noted the piesence of iraumala injuries pariicuLirly under Ins eyes and on his arms, back, chest and thigh When the applicant first apjieared before the Bobigny investigating judge on 29 November 1991, the judge on his own initiative, appointed an expert to examine him On 2 December 1991 the applicant was exanuned by Dr N of the medical service of Fleury-Meiogis Pnson This doctor drew up a medical certificate noting extensive bruising on the chest and thighs and severe haematomas round the eyes" The doctor added 1 laemotomas ( illegible word ) Says sight impaired m left eye On 7 December 1991, a medical examiner, Dr G . the expert attached to Pans Court of Appeal appointed by the investigating judge on 29 November, examined the applicant at the prison The applic int made the following statements to [he doctor 58 "I was arrested in the street on 25 November 1991 at about 9 a m There were no problems at that stage I was taken to my hotel One of the plainclothes police officers then hit me in the area of my left temple I was then taken to Bobigny police station At about 10 am 1 was taken up to the first floor where about eight people staning hitling me I was made to kneel down An inspector pulled me up by my hair Another police officer hil me repeatedly on the head with an instrument which might have been a baseball bat Another one kept kicking me and thumping me in the back The interrogation continued 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 dunng a further interrogation and this went on until 2 a m When 1 arrived at Fleury. 1 underwent a medical examination ' The doctor noted m his lepoit -suborbital haematoma iwo centimetres below the left lower lid, purplish, almost completely healed thin, linear scar approximaieK 1 cm long continuing the line of the left eyebrow right suborbital hacmaionia, almost completely healed multiple cuta leous abi asions (six of which are large), almost completely healed, on the left upper limb two 5 cm linear cutaneous abi asions - possibly scratches - on the right upper limb 0 5 cm cutaneous lesion on the back of the right hand haematoma on the posterior part of the chest in the right hand infraspinous region -haematoma m the right dank region severe (10 cm by 5 cm) haematoma on the left lateral pait of the chest -three haematomas on the left flank severe (5 cm by 3 cm) haematoma on the anterior pait of the chest purplish, in the epigastric region haematoma m the right prehepatic region haematoma on left rib t.age 5 cm below the nipple -5 cm by 3 cm haematoma on the left lateral part of the axillary line haematoma in the right subclavian region haematoma on the right buttock -10 cm bv 5 cm haematoma on the left buttock -5 cm by 1 cm hnedt liaemaioma on the anlerocxternal pdri of the left thigh cutaneous abrasion con esponding to a wound now healing, on the anterior part of the right ankle 59 swelling on the back ot the right foot and a cutaneous abrasion on the back of the fool 5 superficial wounds, now healing, on the anteroinferior part of the right leg -cutaneous abrasions and bruised swelling on the back of the first two left metacarpals The patient states that, on his arnval at Fleury, he was treated with skin cream and given painkillers No injuries to the scalp or left eyeball The doctor concluded his report as follows CONCLUSION [The applicant] states that he was subjected to ill-treatment while in police custody The traumatic injuries to his cutaneous integument correspond to the period of police custody These injuries arc healing well This report was attached to the investigation file and given the reference number "D 207" In a letter subsequently sent to the President of the Criminal Court dealing with the charge under the drugs legislalion, the applicant stated that he had been raped with a baseball bat and that a police inspector had urinated over him When questioned by officers of the General Inspectorate of the National Police on I December 1992 at fleuiy Merogis Prison, the applicant confirmed his statement and gave fuilher details ot what had happened At the end ot hi'- interview, the applicant said "1 am filing a cnmnial complaint against the police officers" The applicant regularly attended Hotel Dieu Hospital for treatment On 22 February 1993 the Bobigny public prosecutor requested an investigation to be opened into charges against persons unknown of unla^AfuI wounding with a weapon of a defenceless person and ot indecent assault The applicant and A M , one of his CO defendants in the cnminal case, applied to join the proceedings as civil paities seeking damages on 26 Maich and 5 April 1993 respectively At the same time, on 15 March 1993, the applicant had filed a criminal complaint with a request to join the proceedings as a civil party of ' wounding resulting in toLil unfitness for woik for more than a week, assault with a weapon namely a baseball bat indecent assault, giicvous bodily harm causing permanent disability, in this case the loss of one eye and rape by two or more accomplices all of which offences were commuted between 25 and 2*^ November 1991 by police officers in the exercise of their duties 60 In an order of 15 June 1993, the Bobigny investigating judge dealing with these complaints, Mrs M , ordered them to be joined The investigating judge issuedanumber of warrants to the General Inspectorate, which then heard evidence from numerous police officers The judge heard evidence from the applicant on 14 May 1993, instructed dn expert on 9 June 1993 and served the expert's medical report on the parties on 15 September 1993 The investigating judge questioned the civil parties again on 6 Decemt>er 1993 after the warrants had been returned on 2 December 1993 The civil parUes were questioned again on 10 February 1994 when an identity parade was organised in order to identify the police officers in question With a view to charging the police officers identified by the civil parties, the investigating judge sent the file to the public prosecutor's office on 1 March 1994 The Bobigny public prosecutor referred the matter to the Pans public prosecutor who, in turn, referred it to the Couii of Cassation The applicant was assigned a (aivyer under (lie legal aid award of 26 January 1994 In a judgment of 27 Apiil 1994, the Court of Cassation decided to remove the Bobigny investigating judge from the case and referred it to a judge attached to Versailles (iihunal de qiande instance m the interests of the proper administration of justice On 22 June 1994 a Versailles investigating judge was appointed In an order of 22 September 1995. the investigating judge appointed an eye specialist On 7 November 1995 the applicant underwent an operation on his lett eve He was operated on again on 14 August 1996 To date, the applicant has no information on the investigation being conducted in Versailles He has still not t)een summoned and the investigating judge has not charged anyone COMPLAINTS (Extract) 1 The applicant complains about the violence to which he was subjected by police officers while in their custody He invokes Article 3 of the Convention 61 2. The applicant also complains about the length of time taken to examine his criminal complaint and application to join the proceedings as a civil party seeking damages. He invokes Article 6 para 1 of the Convention, 3 He considers further that the failure to assign him a lawyer to represent him during the judicial inve.stigation and before the Court of Appeal constitutes a violation of Article 6 paras 1 and 3 (c) of the Convention THE LAW (Extract) 1. The applicant complains about the violence to which he was subjected by police officers white in their custody He invokes Article 3 of the Convention which provides that: "No one shall be subjected to torture or to inhuman or degiading treatment or punishment." The icspondent Government raise an objection on the ground that the applicant has not exhausted domestic remedies, since the criminal investigation is still being dealt with by the Versailles investigating judge The applicant considers that he has no means of expediting the procedure and complains tiiat no progress has been made with his case since it was transferred to Versailles, despite the fact that it is based on substantial evidence supporting his allegations The Commission lecalls ihai ihe only remedies which Article 26 of the Convention requires to be exhausted are those that relate lo the breaches alleged and at the same time are available and sufficient. An applicant does not have lo exhaust remedies which, although iheoielically effecdve, in reality offer no chance of redress of the alleged violations It is fuilher established that it falls to the State invoking the exhaustion of remedies rule to prove that the existence of such remedies i^ sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibililv and effectiveness (Eur Court HR. de Jong, Baljet and Van den Brink judgment of 22 May 1984, Seiies A no. 77, p 19. para. 39, Akdivar and Others V. Turkey of 16 September 1996. Reports 1996, to be published). The applicant can establish that the facts of the case or certain special circumstances absolve him from the obligation to exhaust domestic remedies. One of the relevant factors may be coiistifuled by the national authorities retn.nning totally passive in the face of senous allegalions of misconduct or inffiction of harm by State agents, for example wheie they have failed to undeitake investigations or offer assistance (Eur Court HR. the above-mentioned Akdivar and Others v Turkey judgment) or wheie the time taken to exhaust a remedy leads to the observation that It IS not effective (see, intei alia. Nos. 15530/89 and 15531/89, Milap and Mufiuoglu V Turkey. Dec 10 1091. DR 72, p 169). 62 The Commission must iherelore apply Ihe rule while having due regard to the context (Eur Court HR, VMX Oosterwijck v Belgium judgment of 6 November 1980. Senes A no 40, p 18. para 35 the above mentioned Akdivar and Others v Turkey judgment), as Article 26 has to be applied with some degree of flexibility and without excessive formalism (Eur Court HR. Cardot v France judgment of 19 March 1991, Series A no 200, p 18 para i4) In the instant case, the Commission notes that a number of measures were earned out while the proceedings were under the jurisdiction of Bobigny tribunal de giande instance However, the Commission notes that since 27 April 1994, the date on which the investigating judge attached lo that court was removed from the case and it was transferred to Versailles tnbunal de giande instanci, die proceedings have not progressed It notes, in paiticular that five years after the events no one has been charged, despite the fact that the police officers accused by the applicant have been identified Having regard to the seriousness of the applicant's allegations and the length of time which has elapsed since the events look place, the Commission considers that the authorities have not taken all positive measures required in the circumstances to bring the investigation to a rapid comlusion Consequently the Government's argument that the applicant has failed to exhaust domestic remedies c iiinot be allowed It follows that the applicant has satisfied the exhaustion of domestic remedies requirement, in accord nice with Article 26 ot the Convention Having examined the parlies' submissions, the Commission considers that this complaint raises questions of fact and law which cannot t)e resolved at this stage of the examination of the case, but require an examination of the merits It cannot therefore be declared manifestly ill founded pursuant to Article 27 para 2 of the Convention No other ground for declaiing it inadmissible has been established 2 The applicant tKo complains about (he length of (ime taken lo examine his complaint and request to join the proceedings as a civil parly seeking damages He invokes Article 6 para 1 ot the Convention, which piovides that In the deteimmation ot any criminal charge against bim, everyone is entitled to a fair hearing williin a reasonable time by [an] tribunal The Government considei as a preliminary point, that the proceedings about which the applicant complains go back only to 15 March 199^^ the date on which he filed a criminal complaint and leques; to join the proceedings as a civil party seeking damages In the first place the Goveiiimeiit raise the objection that the applicant has tailed to exhaust domestic remedies They consider that from 15 March 1994, the applicant could have requested the investigating judge to commit the case for trial and that should the judge have refused the applicant could have applied lo the Indictments 63 Division, pursuant to the provisions of section 175 I ot the Code of Criminal Procedure The Government go on to point out thai the applicant could also have requested any investigative measuie which he deemed appropriate in accordance with the provisions of sections 81 and 82 1 of the Code ol Criminal Procedure The Government submit in the alternative, that the complexity of the case justifies the length of the proceednigs They consider, moreover, that the investigation in Bobigny was conducted uninterruptedly until 1 March 1994 and that, thereafter, the case was transferred to another court m the interests of the proper administration ot justice, as the police officers in question regularly worked with Bobigny public prosecutor's office The applicant notes that he expressly lodged a criminal complaint on 1 Decern ber 1992, the date of his interview with the General Inspectorate of the National Police He notes that this remedy is available under French law He specifies that he subsequently filed a criminal complaint with a request to join the proceedings as a civil party in order to ensure that the proceedings would progress He notes, moieover, that he was ultimately vindicated by Bobigny public prosecutor's office which began an investigation into Ihe allegations As regards the possibility ot requesting the investigating judge to commit the case for trial, the applicant noles that, m his case this would have obliged the judge to discontinue the proceedings, since no one has >el been charged The case cannot therefore be committed for tnal As regards the complexity of the case and its transfer to another court, the applicant notes that the Bobigny investigating judge was not removed from the case until more than two and a half years after the investigation had started and that, to date, no one has been charged Having regard to its decision to reject the objection raised by the Government regarding the complaint under Article 3 of the Convention, tlie Commission considers thai the objection raised regarding Article 6 para 1 must also be rejected It follows that the applicant has complied with the exhaustion of domestic remedies rule, in accordance with Article 26 of the Convention Having examined the panics' submissions, the Commission considers that this complaint raises questions of fact and law which cannot tie resolved at this stage of the examination of the case, but require an examination on the menls It cannot therefore be declared manifestly ill founded pursuant to Article 27 para 2 of the Convention No other ground for declaring it inadmissible has been established 3 The applicant consideis further that the failure to assign hini a lawyer to represent him during the judicial investigation and before the Court of Apj,wal constitutes a violation of Article 6 paras 1 and 3 (c) of the Convention 64 Article 6 para 3 (c) piovides that Everyone charged with a criminal offence has the following minimum rights c) to defend himself m person or through legal assistance ot his own choosing or it he has not sufficient means to pay for legal assistance, to be given It free when the interests of justice so require The Government raise an objection on the ground that the applicant has failed to exhaust domestic remedies They submit that the applicanl did not submit this complaint to the Court of Cassation either through his officially assigned lawyer or his own written pleadings which he has not proved were sent to the Court of Cassation In the alternative, the Government submit that the applicant was represented by lawyers right from the investigation stage and that these lawyers were duly authorised to communicate freely with him and were summoned by the investigating judge The Government note that the applicant thus had the assistance of an officially assigned lawyer and of three other lawyers contacted and hired by the applicant himself The Government go on to point out that two of them were present at the hearing betore the Criminal Court As regards the proceedings before the Court of Appeal the Government consider diat the applicant is entirely icsponsible for his lack of legal representation since, having informed the President of the Court that he would be appearing alone at that hearing he expressly indicated al the hearing that he did not want legal assistance as can be seen from the judgment of ihe Court of App>eal The Government note that the applicanl was nonetheless given a fair opportunity lo addrc-s the court Hie applicanl notes hisl of all that, contrary to the Government's contention, the Court of Cassation expressly acknowledged receipt of his written pleadings in a letter of 13 December 1993 In that leitei. the senior registrar told him that his pleadings had reached the court registry on 29 November 1993 and that they had been attached to the case-file He considers that he has theiefore complied with the exhaustion of demesne remedies rule The applicant points out fuither that the lawyer assigned to represent him dunng the investigation was always absent and never appeared He explains that it was only after selling property he owned in the Netherlands that he was able to instruct other lawyers As regards the proceedings betore the Court of Appeal the applicant considers that his letter to the Piesideiit of that court contained an implicit request for a lawyer to be assigned He considei s that it is dilficull to know in what conditions the he inng was held and that in aii) event, he complained of the lack of representation in his appeal on points of law 65 The Commission notes at the outset that it is clear from a letter of 13 December 1993, signed by the Senior Registrar of the Criminal Division of the Court of Cassation, that the applicant's own wiitten pleadings were received and attached to his hie on 29 November 1993 The applicant expressly raised this complaint in those pleadings Consequently, the lespondent Government's objection cannot he allowed On tlie merits, the Commission recalls that fairness is assessed on the basis of an examination of the pioceedmgs as a whole and not one isolated aspect This principle applies both to the specific guarantees under paragraph 3 and the concept of a fair trial contained m Article 6 paia 1 of the Convention In this case, the Commission notes that during the investigation the applicant had the benefit of a lawyer assigned by the President of the Bar Council and that, in view of the negligence ot that lawyer tor which the lawyer alone is responsible and not the judicial authorities (see Eui Couil MR. Kamismski v Austria judgment of 19 Decern ber 1989, Series A no 168, p 33, paia 65) he hired three other lawyers of his own choosing Two of them then lepiesented him at the hearing before Bobigny Cnmmal Court As regards the pioceedmgs befoie Pans Couit of Appeal the Commission notes that the applicant did not apply for an officially assigned lawyer It notes moreover, that there is nothing m the lettei to the Piesident of the Couit of Appeal to indicate that the applicant implicitly requested the appointment of a lawyer, especially as the judgment of the Couit of Appeal shows clearly that he expressly declined the assistance of a lawyer at the beginning ot the lieai iiig The Commission notes additionally that the applicant subsequently had no ditticulty in obtaining, at his request, legal aid for his appeal to the Court of Cassation Having regard to the foiegoing, the Commission consideis that the proceedings as a whole, were fair It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to the provisions ot Aitiele 27 para 2 of the Convention 66