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GRAND
CHAMBER
CASE OF
LÉGER v. FRANCE
(Application
no. 19324/02)
JUDGMENT
(Striking
out)
STRASBOURG
30 March
2009
This
judgment is final but may be subject to editorial revision.
In the case of Léger v. France,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Christos
Rozakis, President
Jean-Paul
Costa,
Nicolas
Bratza,
Josep
Casadevall,
Corneliu
Bîrsan,
Nina
Vajic,
Vladimiro
Zagrebelsky,
Alvina
Gyulumyan,
Ljiljana
Mijović,
Dean
Spielmann,
Renate
Jaeger,
Sverre
Erik Jebens,
Ján
Šikuta,
Ineta
Ziemele,
Mark
Villiger,
Luis
López Guerra,
Ledi
Bianku, judges
and
Erik Fribergh, Registrar,
Having
deliberated in private on 30 April 2008 and on 11 March 2009,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 19324/02) against the French
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a French national, Mr Lucien Léger (“the
applicant”), on 6 May 2002.
- The
applicant alleged that his continued detention as a result of his
life sentence amounted in practice to a whole-life term, was
arbitrary in breach of Article 5 § 1 (a) of the Convention, and
constituted inhuman and degrading treatment within the meaning of
Article 3.
- The
application was allocated to the Second Section of the Court (Rule 52
§ 1 of the Rules of Court). On 21 September 2004 it was
declared partly admissible by a Chamber of that Section composed of
the following judges: András Baka, President, Jean-Paul Costa,
Loukis Loucaides, Karel Jungwiert, Volodymyr Butkevych,
Wilhelmina Thomassen and Mindia Ugrekhelidze, and also of Sally
Dollé, Section Registrar. A hearing took place in public in
the Human Rights Building, Strasbourg, on 26 April 2005
(Rule 59 § 3). On 11 April 2006 a Chamber of the same Section,
composed of the following judges: András Baka, President,
Jean-Paul Costa, Rıza Türmen, Karel Jungwiert, Mindia
Ugrekhelidze, Antonella Mularoni and Elisabet Fura-Sandström,
and also of Sally Dollé, Section Registrar, delivered a
judgment in which it held by a majority that there had been no
violation of Article 3 and Article 5 § 1 (a) of the Convention.
The partly dissenting opinion of Judge Costa, the partly concurring,
partly dissenting opinion of Judge Mularoni and the dissenting
opinion of Judge Fura Sandström were appended to the
judgment.
- In
a letter of 7 July 2006 the applicant requested the referral of the
case to the Grand Chamber in accordance with Article 43 of the
Convention and Rule 73. The panel of the Grand Chamber granted that
request on 13 September 2006.
- The
composition of the Grand Chamber was determined in accordance with
the provisions of Article 27 §§ 2 and 3 of the Convention
and Rule 24.
- The
applicant, but not the Government, filed additional observations on
the merits.
- A
hearing took place in public in the Human Rights Building,
Strasbourg, on 30 April 2008 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Ms A.-F. Tissier, Head of
the Human Rights Section, Department of Legal Affairs, Ministry of
Foreign Affairs, Agent,
Ms M.
Mongin-Heuzé, magistrat, on secondment to the
Human Rights Section, Ministry of Foreign Affairs,
Mr R. Dubant,
Head of the Sentence Enforcement and Pardons Office, Ministry of
Justice,
Ms A. Salisse,
drafting secretary, Legal Action and Prison Law Office, Department of
Prison Affairs, Ministry of Justice,
Ms M.-A.
Recher, drafting secretary, European and International Affairs
Department, Ministry of Justice, Advisers;
(b) for the applicant
Mr J.-J.
de Felice, member of the Paris Bar, Counsel,
Mr H.
de Suremain, legal officer, International Prison Watch, French
section,
Ms B. Belda,
lecturer, University of Montpellier I, Advisers.
The
applicant was also present.
The
Court heard addresses by Ms Tissier and Mr de Felice.
- The
applicant was found dead at his home on 18 July 2008. His
representative himself died on 27 July 2008. On 11 August 2008
Ms I. Terrel stated that she would be taking over the case
from Mr de Felice. On 8 September 2008 Ms Terrel produced a
form of authority drawn up in her name by Mrs Viviane Hirardin, née
Derveaux.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1937 and died in July 2008.
A. The applicant's conviction in 1966
- In
July 1964 the applicant was prosecuted for the abduction and murder
of Luc Taron, an 11-year-old boy, on 26 and 27 May 1964.
- On
5 July 1964, while in police custody, the applicant signed a
confession which was not retracted during the first ten months of the
investigation. Later that day he was placed in pre-trial detention.
The investigating judge questioned him on several occasions about the
reasons for his conduct, which was at odds with his confession, but
the applicant refused to offer an explanation.
- On
21 December 1964 a panel of experts in neuropsychiatry submitted a
report, concluding that there had been no sign of mental illness at
the time of the events. The experts contended that the physiological
and psychological abnormalities observed, coupled with the
applicant's alleged memory loss at the time of the killing, “[made]
it impossible to rule out the presence of an epileptic symptom with a
twilight state and dimming of consciousness”. They concluded
that the applicant was “dangerous” and “liable to a
criminal penalty” and that the organic disorders observed would
be amenable to palliative treatment alone, meaning that “his
social rehabilitation could be envisaged only with the utmost
caution”.
- A
second report, submitted on 30 April 1965, concluded that the
applicant was fit to stand trial and to answer for his actions in
court and was a danger to public safety.
- On
11 June 1965 the applicant withdrew his confession, while refusing to
expand on his explanations. From that date on he maintained his
innocence. He was committed for trial in the Assize Court for the
département of Seine-et-Oise.
- Following
the hearing in the Assize Court, the prosecution did not seek any
particular penalty.
- In
a judgment of 7 May 1966 the Assize Court dismissed the charge of
premeditated murder but found the applicant guilty of abduction and
subsequent murder, with mitigating circumstances. The applicant was
sentenced to life imprisonment, no minimum term being set.
- On
29 November 1966 the Court of Cassation dismissed an appeal on points
of law by the civil party.
- On
17 June 1971 the applicant, through his lawyer, lodged an initial
application for a retrial, which was apparently not examined.
- On
6 September 1974 the applicant's lawyer lodged a second application
for a retrial with the Minister of Justice. The application gave rise
to an investigation, the findings of which were due to be disclosed
to the lawyer. However, the lawyer died before the report was
submitted and the findings of the investigation were never forwarded
to the applicant. Several months later, the applicant was notified
orally that the application had been dismissed.
B. Applications for release from 1979 to 2000
- On
5 July 1979, on the expiry of the probationary period of 15 years
expressly provided for in the Code of Criminal Procedure, the
applicant became eligible to apply for release; he subsequently made
several such applications. In 1984 he received the support of the
President of the Human Rights League (Ligue des droits de
l'homme), while the civil party threatened the applicant with
death should he be released from prison.
- The
applicant's applications for release on licence were transmitted to
the Minister of Justice, the competent authority at the time, in
1985, 1988, 1990, 1991, 1992, 1993, 1994, 1995 and 1997. They were
each refused, among other reasons for the applicant's own safety
despite “evidence supporting them”, as a former Minister
of Justice (from 1995 to 1997) explained in a press article on 8 June
2000.
- The
applicant also made several applications for a presidential pardon,
but without success. The last refusal occurred in 1998, after an
expert medical assessment had concluded that the applicant's state of
health was compatible with detention.
- On
18 March 1999 a member of the Lille Bar applied for the applicant's
release on licence.
- The
sentence enforcement board gave a positive opinion, but consideration
of the application was adjourned pending the submission of a fresh
expert report.
- On
4 October 1999 the experts submitted their report, focusing entirely
on aspects of the applicant's personality from a strictly psychiatric
and forensic standpoint. They concluded that there were no formal
obstacles to his release.
- The
report also stated that the previous experts had already found that
there did not appear to be a risk of a further offence involving a
child and that only the risk of a surge of paranoia and querulousness
had held them back. The experts considered that there was nothing
standing in the way of the applicant's release on licence, and that
it was ultimately the continuity, consistency and solidity of the
reference points provided to him that should prevent a reaction of
psychological destabilisation after such a lengthy period of
imprisonment. They therefore took the view that it would be helpful
for the applicant, at least initially, to receive support through
psychological counselling.
- On
7 February 2000 the judge responsible for the execution of sentences
gave his opinion, concluding that there were no obstacles to the
applicant's release.
- Following
the reform of the post-sentencing system under Law no. 2000-516
of 15 June 2000, in particular the conditions and procedure for
releasing long-term prisoners on licence, the Minister of Justice
refused the applicant's application and referred his case to the
newly established courts.
C. The applicant's 2001 application for release on
licence
- On
16 January 2001 the applicant submitted an application under the new
judicial procedure. In it he again stated that, on his release,
friends would provide him with accommodation in an outbuilding at
their home and with employment in their bakery.
- On
5 February 2001 the sentence enforcement board issued a unanimous
opinion in favour of his release on licence. The applicant's
resettlement and probation officer likewise expressed an opinion
strongly in favour of the application.
- At
the hearing in the Douai Regional Parole Court the advocate-general
submitted that the applicant's application should be refused in view
of his “failure to make amends” for the acts that had led
to his conviction.
- In
a decision of 6 July 2001 the Regional Parole Court, observing that
the applicant denied having committed the offence of which he had
been convicted, refused his application, basing its decision in
particular on the psychiatric expert assessments carried out between
1965 and 1999.
- The
applicant appealed to the National Parole Court. His lawyer observed
that the applicant was assured of work and accommodation on his
release and that the most recent psychiatric report submitted by a
panel of experts on 4 October 1999 had concluded that nothing stood
in the way of his release on licence as there no longer appeared to
be any risk of his reoffending. Relying on Article 3 of the
Convention, he argued that making the applicant's release conditional
on a confession was tantamount to a slow death sentence.
- On
12 November 2001 the applicant's friends attested that their offer of
accommodation and employment, which they had repeatedly made over a
period of seventeen years, was still valid even though their bakery
was in the process of being sold to a private company founded by
their children, as there was another business operating at their home
address.
- In
a judgment of 23 November 2001 the National Parole Court upheld the
Regional Parole Court's decision, holding that the offers of
employment and accommodation referred to by the applicant in support
of his application as evidence of a social resettlement plan were
closely interlinked and were in doubt as a result of the bankruptcy
order against the person who had made them; it added that the
paranoid tendencies still observed by the most recent expert would
have required psychological counselling, which the applicant did not
envisage undergoing.
- Following
a proposal to commute the applicant's sentence, a fresh psychiatric
assessment was carried out in May 2004. The expert considered that
there had been no particularly perceptible change in the applicant's
mental state since the psychiatric assessments in 1999; that his
character and personality traits did not make it possible to rule out
with absolute certainty the risk of manifest dangerousness in the
community, in the psychiatric sense of the term; and that he had to
reserve judgment as to the applicant's prospects of readjusting.
D. The 2005 application for release on licence
- On
25 January 2005 the applicant lodged a further application for
release on licence with the Arras Post-sentencing Court (tribunal
de l'application des peines).
- The
prison authorities recommended applying a probationary semi-custodial
regime. The public prosecutor was opposed to the applicant's release
on licence, contending that such a measure would create a dual risk
for society of his reoffending and of his decompensation.
- In
a judgment of 1 July 2005, which was upheld on 31 August 2005 by the
Post-sentencing Division of the Douai Court of Appeal, the applicant
was released on licence with effect from 3 October 2005 until 2
October 2015, on which date the monitoring and supervision
arrangements would expire. In addition to the standard requirements
which he was to observe (place of residence, contact with the judge
responsible for execution of sentences and Prison Service social
workers, permission for travel), particular obligations were imposed
on the applicant: to undergo medical examinations, treatment or care,
including in a hospital environment, and to refrain from contacting
the victim's mother, from distributing any publication or audiovisual
work produced or co-produced by himself relating, in whole or in
part, to the offence committed, and from making any public comment on
the offence.
- The
courts held that the applicant now satisfied the conditions laid down
in Article 729 of the CCP and based their decision on three aspects.
Firstly, he had a stable and long-term plan, which was coherent in
terms of both accommodation (with long-standing friends who had
already assisted a number of people in difficulty) and voluntary work
for the Red Cross. Furthermore, with regard to the applicant's
attitude towards the victims, the courts pointed out that he had not
made the slightest gesture to them and was taking refuge behind his
alleged innocence, but considered “that Mr Léger's
conduct [did] not, after 41 years of imprisonment, represent an
obstacle to his release on licence as it might have done in the
past”. Lastly, they noted that the risk of his reoffending was
limited (“a zero risk of reoffending is so rare”) and
that the recent expert reports were generally in favour of his
release on licence. The Post-sentencing Court therefore concluded by
noting that there was no cause to expect a more positive development
in the applicant's case, and that a refusal of his application for
release on licence would amount to his virtually permanent exclusion
from society, which did not appear justified in view of his
resettlement plan and the limited nature of the risk of his
reoffending. On 3 October 2005 the applicant was indeed released.
- On
17 November 2006 a follow-up report on the applicant, giving an
assessment of the first year following his release on licence, was
submitted by social workers. In their conclusions they referred,
among other things, to an improvement in his health and to genuine
progress in terms of personal autonomy. They noted that there had
been no change in his statements regarding his innocence and his
desire to make it known. While observing that the applicant was
meeting his obligations, they expressed the view that he did not
accept them in that he disputed the legitimacy of the obligation not
to comment on the events, continually argued that the meetings with
the psychiatrist were of no use and regarded the social workers'
intervention as a restriction of his liberty.
THE LAW
- The
Court observes that Article 37 § 1 of the Convention provides:
“The Court may at any stage of the proceedings
decide to strike an application out of its list of cases where the
circumstances lead to the conclusion that
(a) the applicant does not intend to pursue
his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the
Court, it is no longer justified to continue the examination of the
application.
However, the Court shall continue the examination of the
application if respect for human rights as defined in the Convention
and the Protocols thereto so requires.”
- It
also notes that in a number of cases in which an applicant died in
the course of the proceedings it has taken into account the
statements of the applicant's heirs or of close family members
expressing the wish to pursue the proceedings (see Deweer v.
Belgium, 27 February 1980, §§ 37-38, Series A no.
35; X v. the United Kingdom, 5 November 1981, § 32,
Series A no. 46; Vocaturo v. Italy, 24 May 1991, § 2,
Series A no. 206-C; G. v. Italy, 27 February 1992, §
2, Series A no. 228-F; Pandolfelli and Palumbo v. Italy,
27 February 1992, § 2, Series A no. 231-B; X v. France,
31 March 1992, § 26, Series A no. 234-C; and Raimondo v.
Italy, 22 February 1994, § 2, Series A no. 281-A), or
the existence of a legitimate interest claimed by a person wishing to
pursue the application (see Malhous v. the Czech Republic
(dec.) [GC], no. 33071/96, ECHR 2000-XII).
- On
the other hand, it has been the Court's practice to strike
applications out of the list of cases in the absence of any heir or
close relative who has expressed the wish to pursue an application
(see, among other authorities, Scherer v. Switzerland, 25
March 1994, §§ 31-32, Series A no. 287; Öhlinger
v. Austria, no. 21444/93, Commission's report of 14 January 1997,
§ 15; and Thévenon v. France (dec.), no. 2476/02,
ECHR 2006-III).
- In
the instant case the applicant was found dead at his home on 18 July
2008. The Court was informed of this by the media and not by the
applicant's lawyer, Mr de Felice, who himself died on 27 July 2008.
- On
11 August 2008 Ms I. Terrel stated that she would be taking over the
case from Mr de Felice, although she did not produce a form of
authority completed in her name. In a letter of 12 August 2008 the
Registry asked her to indicate whether any heirs had come forward
and, if so, whether they had expressed the wish to pursue the
proceedings; in the latter event she was asked to produce a form of
authority completed in her name.
- On
8 September 2008 Ms Terrel produced a power of attorney drawn up in
her name by Mrs Viviane Hirardin, née Derveaux, who was
referred to as the applicant's niece and the sole heir who had come
forward after his death.
- On
26 September 2008 the Government stated, firstly, that the documents
produced did not appear to establish the existence of the alleged
family relationship and, secondly, that even assuming that such a
relationship were established, there was no evidence that Mrs
Hirardin had accepted the estate; they further noted the insufficient
legitimate interest on Mrs Hirardin's part in having the proceedings
pursued on her behalf, observing in particular that she did not
appear to have ever visited the applicant in prison.
- In
a letter of 30 September 2008 the Registry invited Ms Terrel to
submit her comments by 10 October. No response has been forthcoming.
- The
Court observes that the request to pursue the proceedings was
submitted by a person who has provided no evidence either of her
status as an heir or close relative of the applicant, or of any
legitimate interest (see, among other authorities, mutatis
mutandis, Thévenon, cited above).
- In the light of the foregoing, in accordance with
Article 37 § 1 (c) of the Convention, the Court considers that
it is no longer justified to continue the examination of the
application. Furthermore, having regard to the fact that the relevant
law has changed and that similar issues have been resolved in other
cases before it (see, for example, Kafkaris v. Cyprus [GC],
no. 21906/04, ECHR 2008-...), the Court considers that respect for
human rights does not require it to continue the examination of the
case (see, mutatis mutandis, Scherer, cited above).
FOR THESE REASONS, THE COURT
Decides
by thirteen votes to four to strike the application out of its list
of cases.
Done in English and in French, and notified in writing on
30 March 2009, pursuant to Rule 77 §§ 2 and 3 of
the Rules of Court.
Erik Fribergh Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge
Spielmann joined by Judges Bratza, Gyulumyan and Jebens is annexed to
this judgment.
C.L.R.
E.F.
DISSENTING OPINION OF JUDGE SPIELMANN, JOINED BY JUDGES
BRATZA, GYULUMYAN AND JEBENS
- I
voted against striking the application out of the list of cases
because in my view the case reveals special circumstances affecting
respect for the rights guaranteed by the Convention that required the
Court to continue the examination of the case.
- Pursuant
to Article 37 § 1 (c) in fine of the Convention “the
Court shall continue the examination of the application if respect
for human rights as defined in the Convention and the protocols
thereto so requires.”
- The
mere fact that the domestic law has changed (see paragraph 51 of the
majority judgment) is in my view irrelevant. Interpreting Article 37
§ 1 (c) in fine:
“[t]he Court has repeatedly
stated that its 'judgments in fact serve not only to decide those
cases brought before the Court but, more generally, to elucidate,
safeguard and develop the rules instituted by the Convention, thereby
contributing to the observance by the States of the engagements
undertaken by them as Contracting Parties' (see Ireland v. the United
Kingdom, cited above, p. 62, § 154, and Guzzardi v. Italy,
judgment of 6 November 1980, Series A no. 39, p. 31, § 86).
Although the primary purpose of the Convention system is to provide
individual relief, its mission is also to determine issues on
public-policy grounds in the common interest, thereby raising the
general standards of protection of human rights and extending human
rights jurisprudence throughout the community of Convention States”.
- In
the present case, the Court could have taken a decision to determine
issues on public-policy grounds in the common interest, thereby
raising the general standards of protection of human rights and
extending human rights jurisprudence throughout the community of
Convention States. After
all, a panel of five judges of the Grand Chamber accepted the
referral of the case, taking the view that it met the criteria set
out in Article 43 of the Convention. According to this
provision, only an “exceptional case” raising “a
serious question affecting the interpretation or application of the
Convention ... or a serious issue of general importance” can be
re examined. Based on the fact that it was referred to the Grand
Chamber, I think there is a strong presumption in favour of
considering the case as one which required the Court to continue the
examination of the application, notwithstanding the fact that the
applicant died in the meantime.
- Nor
do I believe that the Court would have been in any way hampered in
its further consideration of the case by the death of the applicant
and his lawyer. The case had been fully argued by the parties in both
written and oral submissions before the Grand Chamber and was ready
for determination.
- In
the Chamber judgment of 11 April 2006, the Court found no violations
of Article 5 § 1 (a) and Article 3 of the Convention.
- By
re-examining the case, the Grand Chamber would have had the
opportunity to elaborate under Article 5 on the difficult question of
the “lawfulness” of the applicant's continued detention
after more than four decades of incarceration, in particular
taking into account the important aspect of reintegration into the
community. This distinguishes the present case from the case of
Kafkaris,
referred to in paragraph 51 of the majority judgment. In
addition, in Kafkaris, the problem examined under
Article 5 § 1 (a) mainly concerned the potential
impact of the notice issued by the prison authorities, on the basis
of the Prison Regulations in force at the time, setting a conditional
release date.
- Moreover,
the Court has never had the opportunity to rule on the difficult
question of principle as to whether irreducible life sentences
are, as such, incompatible with Article 3. In the case
of adults, the Court has not ruled out the possibility that in
special circumstances an irreducible life sentence might also raise
an issue under the Convention where there is no hope of entitlement
to a measure such as parole.
In this context, I would recall that the German Federal
Constitutional Court decided, as far back as 1977, that an
irreducible life sentence, if there was no hope of early release,
would violate the principle of human dignity as enshrined in Article
1 of the German Basic Law, and the constitutional principle of
proportionality.
- As
regards the complaint under Article 3, the Court did not decide in
Kafkaris whether the imposition and execution of an
irreducible life sentence were in principle inconsistent with
Article 3 of the Convention. As Judge Bratza rightly emphasised in
his concurring opinion in Kafkaris:
“...the
time has come when the Court should clearly affirm that the
imposition of an irreducible life sentence, even on an adult
offender, is in principle inconsistent with Article 3 of the
Convention. What amounts to an 'irreducible' sentence for this
purpose has been variously explained by the Court as being a sentence
for the duration of the life of the offender with no 'possibility' or
'hope' or 'prospect' of release.
- There
is no identity, factual or otherwise, between the issues in the cases
of Kafkaris and Léger. Therefore, I cannot
follow the majority view expressed in paragraph 51 of the
judgment that, in Kafkaris, the Court dealt with similar
issues. Indeed, in the instant case, the Court had the benefit of
hindsight, a fact which distinguishes it from Kafkaris. The
applicant, whose “prospects” or “hopes” of
release were largely frustrated, remained in prison for more than 41
years. Given the consensus at European level as to the need to
envisage and prepare for the resettlement of long-term prisoners, and
State practice in this respect, I think it very unlikely that a
parallel case raising similar issues will be brought before the Court
in the near future.
