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You are here: BAILII >> Databases >> European Court of Human Rights >> NAVARRA v. FRANCE - 13190/87 [1993] ECHR 53 (23 November 1993) URL: http://www.bailii.org/eu/cases/ECHR/1993/53.html Cite as: [1993] ECHR 53, (1994) 17 EHRR 594, 17 EHRR 594

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In the case of Navarra v. France*,

The European Court of Human Rights, sitting, in accordance

with Article 43 (art. 43) of the Convention for the Protection

of Human Rights and Fundamental Freedoms ("the Convention")** and

the relevant provisions of the Rules of Court, as a Chamber

composed of the following judges:

Mr R. Ryssdal, President,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mrs E. Palm,

Mr A.N. Loizou,

Mr J.M. Morenilla,

Mr A.B. Baka,

Mr L. Wildhaber,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 25 May and 26 October 1993,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 38/1992/383/461. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since

its creation and on the list of the corresponding originating

applications to the Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came

into force on 1 January 1990.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 26 October 1992,

within the three-month period laid down by Article 32 para. 1 and

Article 47 (art. 32-1, art. 47) of the Convention. It originated

in an application (no. 13190/87) against the French Republic

lodged with the Commission under Article 25 (art. 25) by a French

national, Mr Paul Navarra, on 31 July 1987.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby France

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46). The object of the request was to obtain a decision

as to whether the facts of the case disclosed a breach by the

respondent State of its obligations under Article 5 para. 4

(art. 5-4).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated

that he wished to take part in the proceedings and designated the

lawyer who would represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Mr L.-E. Pettiti, the elected judge of French nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On

30 October 1992, in the presence of the Registrar, the President drew

by lot the names of the other seven members, namely Mr F. Gölcüklü,

Mr N. Valticos, Mrs E. Palm, Mr A.N. Loizou, Mr J.M. Morenilla,

Mr A.B. Baka and Mr L. Wildhaber (Article 43 in fine of the

Convention and Rule 21 para. 4) (art. 43). Subsequently,

Mr F. Matscher, substitute judge, replaced Mr Valticos, who was

unable to take part in the further consideration of the case

(Rule 22 §§ 1 and 2 and Rule 24 para. 1).

4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the French

Government ("the Government"), the applicant's lawyer and the

Delegate of the Commission on the organisation of the proceedings

(Rules 37 para. 1 and 38). Pursuant to the order made in

consequence, the Registrar received the Government's memorial on

19 March 1993 and the applicant's memorial on 13 April. By a

letter of 18 May, the Delegate of the Commission informed the

Registrar that he would address the Court at the hearing.

5. On 1 April 1993 the Commission produced the file on the

proceedings before it, as requested by the Registrar on the

President's instructions.

6. In accordance with the President's decision, the hearing

took place in public in the Human Rights Building, Strasbourg,

on 24 May 1993. The Court had held a preparatory meeting

beforehand.

There appeared before the Court:

(a) for the Government

Mr B. Gain, Head of the Human Rights Section,

Legal Affairs Department, Ministry of

Foreign Affairs, Agent,

Mr P. Titiun, magistrat, on secondment to the

Legal Affairs Department, Ministry of

Foreign Affairs, Counsel;

(b) for the Commission

Mr B. Marxer, Delegate;

(c) for the applicant

Mr J. Ciccolini, avocat, Counsel.

The Court heard addresses by Mr Gain, by Mr Marxer and by

Mr Ciccolini, as well as their replies to a question from one of

its members.

AS TO THE FACTS

I. The particular circumstances of the case

7. Mr Paul Navarra, a farmer, lives in Bastia, Upper Corsica.

On 22 November 1985 he was remanded in custody on a charge of

armed robbery. During his detention on remand in Nice prison,

he filed six applications for release.

A. The first two applications for release

8. An investigating judge of the Nice tribunal de grande

instance dismissed the first two applications, lodged on

28 November and 30 December 1985, by orders of 2 December 1985

and 3 January 1986. No appeal was filed from the first order;

the second was confirmed by the Indictment Division of the

Aix-en-Provence Court of Appeal on 29 January 1986.

B. The third application for release

9. On 24 March 1986 the investigating judge also dismissed the

third application, which had been made on 19 March.

10. On 23 April 1986 the Indictment Division found inadmissible

the appeal filed by the applicant on 25 March against that

decision, which it declared void inasmuch as it had been made in

respect of an application which did not comply with procedural

requirements, not having been filed in the manner prescribed in

the Code of Criminal Procedure.

11. On 28 May 1986 the applicant appealed to the Court of

Cassation, which received the file on 19 June. On

13 September 1986 it quashed the contested decision and remitted

the case to the Indictment Division of the Montpellier Court of

Appeal.

12. The file reached the registry on 1 October 1986.

On 9 October the principal public prosecutor at the Montpellier

Court of Appeal notified the applicant that the hearing had been

set down for 21 October.

In a memorial of 17 October 1986 Mr Navarra's lawyer

complained of the failure to comply with the time-limit within

which, according to Article 194 of the Code of Criminal Procedure

(see paragraph 18 below), the appeal of 25 March 1986 should have

been examined. He also maintained that the matter had not been

decided "speedily", as required by Article 5 para. 4 (art. 5-4)

of the Convention.

13. On 24 October 1986 the Montpellier Indictment Division

declared the appeal of 25 March 1986 ill-founded and confirmed

the order made on 24 March dismissing the application for release

of 19 March. It noted as follows:

"...

The proceedings followed a normal course and in these

circumstances it does not appear that there was a failure

to comply with the provisions of Article 194 of the Code of

Criminal Procedure, as is claimed by Paul Navarra's lawyer

in his memorial.

..."

14. On 19 November 1986 the applicant appealed to the Court of

Cassation, alleging that the Indictment Division had not replied

to the submission based on Article 5 para. 4 (art. 5-4) of the

Convention.

The Court of Cassation dismissed this appeal on

24 February 1987, on the following grounds:

"... the Indictment Division, which found, moreover

correctly, that the judgment quashed had been given within

the time-limit laid down in Article 194 of the Code of

Criminal Procedure, replied sufficiently, albeit

implicitly, to the submission in the memorial before it

complaining of a failure to comply with the time-limit, and

was not open to the criticism levelled in the second limb

of the submission, which must accordingly be dismissed;

..."

C. The last three applications for release

15. On 20 March and 18 May 1987 the applicant lodged his fourth

and fifth applications for release. The investigating judge of

the Nice tribunal de grande instance dismissed them by orders of

25 March and 22 May, which were upheld by the Indictment Division

of the Aix-en-Provence Court of Appeal on 21 April and

17 June 1987.

On the other hand, on 27 November 1987 the investigating

judge allowed the sixth and last application, which had been

lodged two days earlier.

D. The order finding that there was no case to answer

16. On 17 December 1987 the investigating judge made an order

finding that Mr Navarra had no case to answer.

17. On 17 March 1988, pursuant to Article 149 of the Code of

Criminal Procedure, the applicant sought 400,000 French francs

in compensation for the detention on remand that he had undergone

from 22 November 1985 to 27 November 1987. On 26 May 1989 the

Compensation Board of the Court of Cassation declared the claim

admissible but ill-founded.

II. The relevant domestic law

18. As applicable at the material time, the relevant provisions

of the Code of Criminal Procedure are as follows:

Article 148

"Whatever the classification of the offence, the accused

or his lawyer may lodge at any time with the investigating

judge an application for release ...

The investigating judge shall immediately communicate the

file to the public prosecutor for his submissions. He

shall at the same time, by whatever means, inform any party

seeking damages, who may submit observations ...

The investigating judge shall rule, by an order giving

specific grounds ..., not later than five days after the

communication of the file to the public prosecutor.

...

When an order is made releasing the accused it may be

accompanied by an order placing him under court

supervision.

..."

The Law of 6 July 1989 added to the third paragraph a

sentence, which is worded as follows:

"However, where a decision has not yet been made on a

previous application for release or on the appeal from a

previous order refusing release, the five-day prescribed

period begins to run with effect from the decision given by

the investigating authority."

Article 148-2

"Any court called upon to rule ... on an application for

release shall give its decision after hearing the

prosecution and the accused or his counsel. Where the

accused is not in custody, he and his counsel shall be

summoned by registered letter at least forty-eight hours

before the date of the hearing.

The court hearing the application shall give its decision

within ten days of receipt of the application at first

instance or within twenty days of the appeal at second

instance; ... where no decision is forthcoming on expiry of

the above time-limits, the detention on remand shall be

terminated and the accused, if not detained in connection

with other matters, shall automatically be released.

The [first instance] court's decision shall be

immediately enforceable notwithstanding any appeal; where

the accused remains in detention, the Court of Appeal shall

give its decision within twenty days of the appeal, failing

which, if he is not detained in connection with other

matters, the accused shall automatically be released."

Article 149

"... a person who has been held in detention on remand

during proceedings which have been terminated in so far as

he is concerned by a finding that he has no case to answer

(non-lieu) that has become final or by an acquittal that

has become final shall be entitled to compensation where

such detention has caused him damage of a clearly

exceptional and particularly serious nature."

Article 194

"The principal public prosecutor [at the Court of Appeal]

shall prepare the case file for hearing within forty-eight

hours of receiving the documents for questions relating to

detention on remand, and within ten days in all other

cases, and shall forward it, together with his submissions,

to the Indictment Division.

The Indictment Division shall, when dealing with

questions relating to detention on remand, give its

decision as speedily as possible and not later than thirty

days after the appeal provided for in Article 186, failing

which the accused shall automatically be released, except

where verifications concerning his application have been

ordered or where unforeseeable and insurmountable

circumstances prevent the matter being decided within the

time-limit laid down in the present Article."

A Law of 30 December 1987, which came into force on

1 October 1988, reduced the time-limit from thirty to fifteen

days.

Article 567-2

"The criminal division hearing an appeal on points of law

against the decision of the Indictment Division concerning

detention on remand shall rule within three months of the

file's receipt at the Court of Cassation, failing which the

accused shall automatically be released.

..."

PROCEEDINGS BEFORE THE COMMISSION

19. Mr Navarra lodged his application with the Commission on

31 July 1987. He complained that his appeal of 25 March 1986

against the order made the previous day had not been heard on its

merits "speedily" as was required under Article 5 para. 4

(art. 5-4).

20. The Commission declared the application (no. 13190/87)

admissible on 1 March 1991. In its report of 9 September 1992

(made under Article 31) (art. 31) it expressed the opinion, by

thirteen votes to six, that there had been no such violation.

The full text of the Commission's opinion and of the two

dissenting opinions contained in the report is reproduced as an

annex to this judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will

appear only with the printed version of the judgment

(volume 273-B of Series A of the Publications of the Court), but

a copy of the Commission's report is available from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT

21. At the hearing on 24 May 1993, the Agent of the Government

confirmed the submissions in his memorial, in which he requested

the Court "to hold that there has been no violation of the

Convention in this instance and to dismiss the application lodged

by Mr Navarra".

22. The applicant's lawyer urged the Court to find a violation

of Article 5 para. 4 (art. 5-4) of the Convention and to award

his client just satisfaction.

AS TO THE LAW

ALLEGED VIOLATION OF ARTICLE 5 PARA. 4 (art. 5-4)

A. Government's preliminary objection

23. The Government contended, as they had already done before

the Commission, that the applicant had failed to exhaust his

domestic remedies, inasmuch as he had not brought an action for

compensation against the State under Article L 781-1 of the Code

of Judicial Organisation, according to which:

"The State shall be under an obligation to compensate for

the damage caused by any malfunctioning of the system of

justice. This liability shall be incurred only in respect

of gross negligence or a denial of justice.

..."

24. An action for damages may be relevant for the purposes of

Article 26 (art. 26) of the Convention, but the only remedies

which that Article requires to be exhausted are those that relate

to the breaches alleged and which are at the same time available

and sufficient. The existence of such remedies must be

sufficiently certain not only in theory but also in practice,

failing which they will lack the requisite accessibility and

effectiveness; it falls to the respondent State to establish that

these various conditions are satisfied (see, among other

authorities, the Vernillo v. France judgment of 20 February 1991,

Series A no. 198, pp. 11-12, para. 27).

Article L 781-1 of the Code of Judicial Organisation

circumscribes the State's liability very narrowly (see the same

judgment). Furthermore Mr Navarra did not claim to be the victim

of a denial of justice or even of gross negligence.

In any event, the Court observes, the right to a speedy

decision on the lawfulness of detention is to be distinguished

from the right to receive compensation for such detention (see,

mutatis mutandis, the Tomasi v. France judgment of 27 August

1992, Series A no. 241-A, p. 34, para. 79). It notes in addition

that the Compensation Board of the Court of Cassation rejected

the applicant's claim under Article 149 of the Code of Criminal

Procedure as ill-founded (see paragraph 17 above).

The objection must therefore be dismissed.

B. Merits of the complaint

25. Mr Navarra maintained that the final decision concerning his

appeal of 25 March 1986 against the order of the previous day

rejecting his application for release, namely the decision of the

Montpellier Indictment Division of 24 October 1986 (see

paragraphs 9, 10 and 13 above), had not been rendered "speedily".

It had therefore infringed Article 5 para. 4 (art. 5-4), which

is worded as follows:

"Everyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings by which

the lawfulness of his detention shall be decided speedily

by a court and his release ordered if the detention is not

lawful."

The Government and the Commission contested this view.

26. According to the Court's case-law on the scope of

paragraphs 1 and 4 of Article 5 (art. 5-1, art. 5-4) of the

Convention, a periodic judicial review must, if it is to satisfy

the requirements of those provisions, comply with both the

substantive and the procedural rules of the national legislation

and moreover be conducted in conformity with the aim of

Article 5 (art. 5), namely to protect the individual against

arbitrariness (see, among other authorities, the Herczegfalvy

v. Austria judgment of 24 September 1992, Series A no. 244, p. 24,

para. 75).

27. As regards compliance with French law, it should be noted

that the courts before which the case came gave their decisions

within the time-limits laid down by law (see paragraph 18 above):

there were two decisions of Indictment Divisions and one of the

Court of Cassation during the period in issue, from 25 March to

24 October 1986.

However, the information obtained at the hearing revealed

a delay for which the applicant was responsible. He waited until

28 May 1986 before filing an appeal on points of law against the

decision of 23 April (see paragraph 11 above). On the other

hand, the forwarding of the file to the Court of Cassation and

subsequently to the Montpellier Indictment Division, following

the remittal of the case to that court, took some time

(28 May - 19 June 1986 and 13 September - 1 October 1986, see

paragraphs 11-12 above).

28. On the matter of protection against arbitrariness, the Court

has already ruled on the question as to how far the requirement

that such proceedings be conducted "speedily" within the meaning

of paragraph 4 of Article 5 (art. 5-4) extends, namely whether

it applies only at first instance or also at subsequent stages

in the proceedings.

In several judgments it has taken into account the "overall

length" of proceedings, thus including the proceedings at all the

different levels of jurisdiction (see the Luberti v. Italy

judgment of 23 February 1984, Series A no. 75, pp. 15-16,

para. 33, and pp. 17-18, para. 37; the Bouamar v. Belgium

judgment of 29 February 1988, Series A no. 129, p. 24, para. 61;

and the Letellier v. France judgment of 26 June 1991, Series A

no. 207, p. 22, para. 56).

The Court reiterates that Article 5 para. 4 (art. 5-4) does

not compel the Contracting States to set up a second level of

jurisdiction for the examination of the lawfulness of detention

and for hearing applications for release. Nevertheless, a State

which institutes such a system must in principle accord to the

detainees the same guarantees on appeal as at first instance

(see the Toth v. Austria judgment of 12 December 1991, Series A

no. 224, p. 23, para. 84).

The requirement that a decision be given "speedily" is

undeniably one such guarantee; however, in order to determine

whether it has been complied with, it is necessary to effect an

overall assessment where, as here, the proceedings were conducted

at two levels of jurisdiction (see the above-mentioned Luberti

judgment, p. 16, para. 33); the Government correctly drew

attention to this.

29. In this instance, the Court entertains certain doubts about

the overall length of the substantive examination of the appeal

of 25 March 1986 (see paragraph 10 above). It should, however,

be borne in mind that Mr Navarra retained the right, enshrined

in French law, to submit further applications for release at any

time (see the Letellier judgment, cited above, ibid.). Yet from

25 March to 24 October 1986 he did not file any new applications;

indeed he did not do so until 20 March 1987 (see paragraphs 13

and 15 above).

30. Accordingly, there has been no violation of Article 5

para. 4 (art. 5-4).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Dismisses the Government's preliminary objection;

2. Holds that there has been no violation of Article 5

para. 4 (art. 5-4).

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on

23 November 1993.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar