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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> LETELLIER v. FRANCE - 12369/86 [1991] ECHR 35 (26 June 1991) URL: http://www.bailii.org/eu/cases/ECHR/1991/35.html Cite as: [1991] ECHR 35, (1992) 14 EHRR 83, 14 EHRR 83

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In the Letellier case*,

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 Thór Vilhjálmsson,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mr R. Macdonald,

Mr R. Bernhardt,

Mr A. Spielmann,

Mr J. De Meyer,

Mr S.K. Martens,

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

Registrar,

Having deliberated in private on 26 January and 24 May 1991,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 29/1990/220/282. 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.

*** The amendments to the Rules of Court which came into force

on 1 April 1989 are applicable to this case.

_______________

PROCEDURE

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

Commission of Human Rights ("the Commission") on 21 May 1990,

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

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

in an application (no. 12369/86) against the French Republic

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

national, Mrs Monique Letellier, on 21 August 1986.

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

from the Court as to whether the facts of the case disclosed a

breach by the respondent State of its obligations under Article 5

§§ 3 and 4 (art. 5-3, art. 5-4) as regards the requirements of

reasonable time and speediness.

2. In response to the enquiry made in accordance with Rule 33

§ 3 (d) of the Rules of Court, the applicant stated that she

wished to take part in the proceedings and designated the lawyer

who would represent her (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 § 3 (b)). On 24 May 1990, in the

presence of the Registrar, the President drew by lot the names of

the other seven members, namely Mr Thór Vilhjálmsson, Mr F.

Matscher, Mr J. Pinheiro Farinha, Mr R. Bernhardt, Mr A.

Spielmann, Mr J. De Meyer and Mr S.K. Martens (Article 43 in fine

of the Convention and Rule 21 § 4) (art. 43). Subsequently Mr R.

Macdonald, substitute judge, replaced Mr Pinheiro Farinha, who

was unable to take part in the further consideration of the case

(Rules 22 § 1 and 24 § 1).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 § 5) and, through the Registrar, consulted the Agent of

the French Government ("the Government"), the Delegate of the

Commission and the applicant's representative on the need for a

written procedure (Rule 37 § 1). In accordance with the order

made in consequence, the Registrar received the applicant's

claims under Article 50 (art. 50) of the Convention on 28 June

1990 and the Government's memorial on 19 October. By a letter of

9 November the Deputy Secretary to the Commission informed the

Registrar that the Delegate would submit his observations at the

hearing.

5. Having consulted, through the Registrar, those who would be

appearing before the Court, the President directed on 16 November

1990 that the oral proceedings should open on 23 January 1991

(Rule 38).

6. The hearing took place in public in the Human Rights

Building, Strasbourg, on the appointed day. The Court had held a

preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mrs E. Belliard, Deputy Director of Legal Affairs,

Ministry of Foreign Affairs, Agent,

Mr B. Gain, Assistant Director of Human Rights,

Legal Affairs Directorate, Ministry of Foreign Affairs,

Miss M. Picard, magistrat, seconded to the Legal Affairs

Directorate, Ministry of Foreign Affairs,

Mrs M. Ingall-Montagnier, magistrat, seconded to the

Criminal Affairs and Pardons Directorate, Ministry of

Justice, Counsel;

(b) for the Commission

Mr A. Weitzel, Delegate;

(c) for the applicant

Ms D. Labadie, avocat, Counsel.

7. The Court heard addresses by Mrs Belliard for the

Government, by Mr Weitzel for the Commission and by Ms Labadie

for the applicant, as well as their answers to its questions. On

the occasion of the hearing the representatives of the Government

and of the applicant produced various documents.

AS TO THE FACTS

I. The particular circumstances of the case

8. Mrs Monique Merdy, née Letellier, a French national residing

at La Varenne Saint-Hilaire (Val-de-Marne), took over a

bar-restaurant in March 1985. The mother of eight children from

two marriages, she was separated from her second husband,

Mr Merdy, a petrol pump attendant, and at the material time was

living with a third man.

9. On 6 July 1985 Mr Merdy was killed by a shot fired from a

car. A witness had taken down the registration number of the

vehicle and on the same day the police detained Mr Gérard Moysan,

who was found to be in possession of a pump-action shotgun. He

admitted that he had fired the shot, but stated that he had acted

on the applicant's instructions. He claimed that she had agreed

to pay him, and one of his friends, Mr Michel Bredon - who also

accused the applicant -, the sum of 40,000 French francs for

killing her husband and that she had advanced him 2,000 francs

for the purchase of the weapon.

Mrs Letellier denied these accusations although she admitted

having seen the murder weapon, having declared in public that she

wished to get rid of her husband and having given her agreement

"without thinking too much about it" to Mr Moysan who had

proposed to carry out the deed. She maintained, moreover, that

she had given 2,000 francs to Mr Moysan, whom she described as "a

poor kid", so that he could buy a motor car.

10. On 8 July 1985, in the course of the first examination, the

investigating judge of the tribunal de grande instance (Regional

Court) of Créteil charged the applicant with being an accessory

to murder and remanded her in custody.

A. The investigation proceedings

1. The first application for release of 20 December 1985

11. On 20 December 1985 the applicant sought her release arguing

that there was no serious evidence of her guilt. She claimed in

addition that she possessed all the necessary guarantees that she

would appear for trial: her home, the business, which she ran

single-handed, and her eight children, some of whom were still

dependent on her.

12. On 24 December 1985 the investigating judge ordered her

release subject to court supervision; she gave the following

grounds for her decision:

"... at this stage of the proceedings detention is no longer

necessary for the process of establishing the truth; ...

although the accused provides guarantees that she will

appear for trial which are sufficient to warrant her

release, court supervision would seem appropriate."

He ordered the applicant not to go outside certain

territorial limits without prior authorisation, to report to him

once a week on a fixed day and at a fixed time, to appear before

him when summoned, to comply with restrictions concerning her

business activities and to refrain from receiving visits from or

meeting four named persons and from entering into contact with

them in any way whatsoever.

Thereupon the guardianship judge (juge des tutelles)

returned custody of her four minor children to Mrs Letellier.

13. On appeal by the Créteil public prosecutor, the indictments

division (chambre d'accusation) of the Paris Court of Appeal set

aside the order on 22 January 1986, declaring that it would

thereafter exercise sole jurisdiction on questions concerning the

detention. It noted in particular as follows:

"...

The file contains ... considerable evidence suggesting

that the accused was an accessory to murder, which is an

exceptionally serious criminal offence having caused a major

disturbance to public order, the gravity of which cannot

diminish in the short lapse of time of six months.

The investigations are continuing and it is necessary to

prevent any manoeuvre capable of impeding the establishment

of the truth.

In addition, in view of the severity of the sentence to

which she is liable at law, there are grounds for fearing

that she may seek to evade the prosecution brought against

her.

No measure of court supervision would be effective in

these various respects.

Ultimately detention on remand remains the sole means of

preventing pressure being brought to bear on the witnesses.

It is necessary in order to protect public order from the

disturbance caused by the offence and to ensure that the

accused remains at the disposal of the judicial authorities.

... ."

As a result, the applicant, who had been released on

24 December 1985, returned to prison on 22 January 1986.

14. At the hearing on 16 January 1986 Mrs Letellier had filed a

defence memorial. In it she stressed that she had waited until

the main phase of the investigation had been concluded before

lodging her application for release; thus all the witnesses had

been heard by the police or by the investigating judge, two

series of confrontations with Mr Moysan had taken place and all

the commissions rogatoires had been executed. She noted in

addition that Article 144 et seq. of the Code of Criminal

Procedure in no way regarded the gravity of the alleged offences

as one of the conditions for placing and keeping an accused in

pre-trial detention and that the parties seeking damages (parties

civiles) had not filed any observations on learning of her

release. She urged the indictments division to confirm the order

of 24 December 1985 releasing her subject to court supervision

and stated that she had no intention whatsoever of evading the

prosecution, that she would comply scrupulously with the court

supervision, that she could provide firm guarantees that she

would appear in court and that further imprisonment would

destroy, both financially and emotionally, a whole family, whose

sole head she remained.

15. Mrs Letellier filed an appeal which the Criminal Division of

the Court of Cassation dismissed on 21 April 1986 on the

following grounds:

"...

In setting aside the order for the release subject to

court supervision of Monique Merdy, née Letellier, accused

of being an accessory to the murder of her husband, the

indictments division, after having set out the facts and

noted the existence of divergences between her statements

and the various testimonies obtained, observed that the

offence had caused a disturbance to public order which had

not yet diminished, that, as the investigation was

continuing, it was important to prevent any manoeuvre likely

to impede the establishment of the truth and bring pressure

to bear on the witnesses, and that the severity of the

sentence to which the accused was liable at law raised

doubts as to whether she would appear for trial if she were

released; the indictments division considered that no

measure of court supervision could be effective in these

various respects;

That being so the Court of Cassation is able to satisfy

itself that the indictments division ordered the continued

detention of Monique Merdy, née Letellier, by a decision

stating specific grounds with reference to the particular

circumstances and for cases provided for in Articles 144 and

145 of the Code of Criminal Procedure;

... ."

2. The second application for release of 24 January 1986

16. On 24 January 1986 the applicant again requested her

release; the indictments division of the Paris Court of Appeal

dismissed her application by a decision of 12 February 1986,

similar to its earlier decision (see paragraph 13 above).

17. On an appeal by Mrs Letellier, the Court of Cassation set

aside this decision on 13 May 1986 on the ground that the rights

of the defence had been infringed as neither the applicant nor

her counsel had been notified of the date of the hearing fixed

for the examination of the application. It remitted the case to

the indictments division of the Paris Court of Appeal, composed

differently.

18. The latter indictments division dismissed the application on

17 September 1986. It considered that there were "in the light

of the evidence ..., serious grounds for suspecting that the

accused had been an accessory to murder". It took the view that

"under these circumstances ..., the accused's detention [was]

necessary, having regard to the seriousness of the offence ...

and the length of the sentence [which she risked], in order to

ensure that she remain[ed] at the disposal of the judicial

authorities and to maintain public order".

It also dismissed the complaints based on a violation of

Article 5 §§ 3 and 4 (art. 5-3, art. 5-4) of the Convention,

stressing that these complaints were not based on any provision

of the Code of Criminal Procedure and that it had taken its

decision with due dispatch in accordance with that code.

19. At the hearing on 16 September 1986, Mrs Letellier had

submitted a defence memorial. In it she requested the

indictments division to order her release "because her

application for release had not been heard within a reasonable

time" within the meaning of Article 5 § 3 (art. 5-3) of the

Convention and to take formal note that she did not object to

being placed under court supervision.

20. On an appeal by Mrs Letellier, the Court of Cassation

overturned this decision on 23 December 1986. It found that the

Court of Appeal had not answered the submissions concerning the

failure to respect the "reasonable time" referred to in

Article 5 § 3 (art. 5-3).

21. On 17 March 1987 the indictments division of the Amiens

Court of Appeal dismissed the application, which had been

remitted to it, on the following grounds:

"...

... the charges are indeed based on sufficient, relevant

and objective evidence despite the accused's claim to the

contrary;

Having regard to the complexity of the case and to the

investigative measures which it necessitates, the time taken

to conduct the investigation remains reasonable for the

purposes of the European Convention, with reference to the

dates on which Mrs Letellier was placed in detention and had

her detention extended; the proceedings have never been

neglected, as examination of the file shows;

Mrs Letellier's complaint that a reasonable time has been

exceeded is also directed against the time taken to hear her

application for release ... and she infers therefrom, by

analogy with Articles 194 and 574-1 of the French Code of

Criminal Procedure, that such a decision should have been

taken within a period of between thirty days and three

months;

However, none of the provisions of that code which are

expressly applicable to the present dispute has been

infringed and it must be recognised that the period of time

which elapsed between the date of the application and that

of the present judgment is only the inevitable result of the

various appeals filed;

Finally the applicant's continued detention on remand

remains necessary to preserve public order from the

disturbance caused by such a - according to the present

state of the investigation - decisive act of incitement to

the murder of Mr Merdy; the extent of such disturbance, to

the whole community, is not determined only on the basis of

the reactions of the victim's entourage, contrary to what

the defence claims ... . "

22. The applicant filed an appeal on points of law. She relied

inter alia on Article 5 § 3 (art. 5-3) of the Convention,

claiming that the indictments division had "failed to consider

whether detention lasting more than twenty-two months, when the

investigation [was] not yet concluded, exceeded a reasonable

time". She also alleged violation of Article 5 § 4 (art. 5-4)

inasmuch as the eighty-three days which had elapsed between the

judgment of the Court of Cassation on 23 December 1986 and the

judgment of the court to which the application was remitted could

not be regarded as satisfying the requirement of speediness.

The Court of Cassation dismissed the appeal on 15 June 1987

on the following grounds:

"...

In order to reply to the accused's submissions based on

the provisions of Article 5 § 3 (art. 5-3) of the European

Convention for the Protection of Human Rights and

Fundamental Freedoms, which she had claimed had been

infringed, the court to which the application was remitted

found that, in relation to the dates on which Monique

Letellier had been placed in detention on remand and had her

detention extended, having regard to the complexity of the

case and the necessary investigative measures, the

proceedings had been conducted within a reasonable time

within the meaning of the above-mentioned Convention; it

found that the time which had elapsed between the date of

her application for release of 24 January 1986 and that of

the present judgment was only the inevitable result of the

various appeals filed, cited in the judgment;

Moreover, in dismissing this application for release and

ordering the accused's continued detention on remand, the

indictments division, after having referred to the grounds

for suspicion against Monique Letellier, noted that the

latter denied having been an accessory in any way although

the declarations in turn of the two main witnesses conflict

with the accused's version. According to the indictments

division, it remains necessary to keep the accused in

detention on remand in order to protect public order from

the disturbance to which incitement to the murder of a

husband gives rise;

In the light of the foregoing statements, the Court of

Cassation is able to satisfy itself that the indictments

division, before which no submissions based on the

provisions of Article 5 § 4 (art. 5-4) of the European

Convention were raised and which was not bound by the

requirements of Article 145-1, sub-paragraph 3, of the Code

of Criminal Procedure, which do not apply in proceedings

concerning more serious criminal offences (matière

criminelle), did, without infringing the provisions referred

to in the defence submissions, give its ruling stating

specific grounds with reference to the particular

circumstances of the case, under the conditions and for the

cases exhaustively listed in Articles 144 and 145 of the

Code of Criminal Procedure;

... ."

3. The other applications for release

23. During the investigation, the applicant submitted six other

applications for release: on 14 February, 21 March, 19 November

and 15 December 1986 and then on 31 March and 5 August 1987. The

indictments division of the Paris Court of Appeal dismissed them

on 5 March, 10 April, 5 December and 23 December 1986 and on 10

April and 24 August 1987 respectively. It based its decisions on

the following grounds:

Judgment of 5 March 1986

"...

The file thus contains considerable evidence suggesting

that the accused was an accessory to murder, which is an

exceptionally serious criminal offence having caused a major

disturbance to public order, the gravity of which cannot

diminish in the short lapse of time of seven months.

The investigations are continuing and it is necessary to

prevent any manoeuvre capable of impeding the establishment

of the truth.

In addition, in view of the severity of the sentence to

which she is liable at law, there are grounds for fearing

that she may seek to evade the prosecution brought against

her.

No measure of court supervision would be effective in

these various respects.

Ultimately, detention on remand remains the sole means of

preventing pressure being brought to bear on the witnesses.

It is necessary to protect public order from the

disturbance caused by the offence and to ensure that the

accused remains at the disposal of the judicial authorities.

... ."

Judgments of 10 April and 5 December 1986

Identical to the preceding decision - itself very similar

to that of 22 January 1986 (see paragraph 13 above) - except

that the sixth paragraph was not included and that the first

paragraph ended at the word "accessory".

Judgment of 23 December 1986

"...

In these circumstances there are strong indications of Mrs

Merdy's guilt, indications which were moreover noted most

recently by a judgment of this indictments division dated 5

December 1986.

The acts which Mrs Merdy is alleged to have carried out

seriously disturbed public order and this disturbance

persists. In addition there is a risk that, if she were to

be freed, she would, in view of the severity of the sentence

to which she is liable, seek to evade the criminal

proceedings brought against her.

The constraints of court supervision would be inadequate

in this instance.

The detention on remand of Mrs Merdy is necessary to

preserve public order from the disturbance caused by the

offence and to ensure that she remains at the disposal of

the judicial authorities.

... ."

Judgment of 10 April 1987

"...

There are strong indications of Monique Letellier's guilt,

having regard to the consistency of Mr Moysan's statements.

No new item of evidence has as yet been brought to the

court's attention such as would be capable of altering the

situation as regards Monique Letellier's incarceration.

The continuation of her detention on remand remains

necessary to preserve public order from the serious

disturbance caused by the offence and to ensure that she

will appear for trial.

The constraints of court supervision would clearly be

inadequate to attain these objectives.

... ."

Judgment of 24 August 1987

"...

In the present state of the proceedings, Monique Letellier

is the subject of an order for the forwarding of documents

to the principal public prosecutor dated 8 July 1987 made by

the Créteil investigating judge, which gives grounds for

supposing that the investigation is close to conclusion so

that the competent court will be able to give judgment

within a reasonable time.

In consequence the detention on remand is absolutely

necessary on account of the particularly serious disturbance

caused by the offence.

It is to be feared that Mrs Letellier will seek to evade

trial, having regard to the severity of the sentence which

she risks.

It is consequently essential that the accused remains in

detention in order to ensure that she is at the disposal of

the trial court.

The guarantees of court supervision would clearly be

inadequate to attain these objectives.

... ."

24. In the defence memorials which she submitted at the hearings

on 23 December 1986, 3 March 1987 and 10 April 1987, Mrs

Letellier stressed the contradictions in the investigation and

the statements of the witnesses. Moreover, she contested the

arguments put forward to justify the extension of her detention.

She maintained that, once released, she would remain at the

disposal of the judicial authorities and that public order would

in no way be threatened; she would comply scrupulously with any

court supervision; she would provide very firm guarantees for her

appearance in court and her continued detention would destroy

emotionally and financially a whole family, whose sole head she

remained. She claimed the benefit of the presumption of

innocence, a fundamental and inviolable principle of French law.

In her memorial of 3 March 1987, the applicant also invoked

Article 5 § 3 (art. 5-3) of the Convention. She noted that "...

in accordance with the case-law of the European Court of Human

Rights, the grounds given in the decision(s) concerning the

application(s) for release, on the one hand, taken together with

the true facts indicated by [her] in her applications, on the

other, [made] it possible [for her] to affirm that those grounds

contained both in the judgment ... of 12 February 1986 and in the

preceding judgment of 22 January 1986 and in the subsequent

judgments [were] neither relevant nor sufficient". She added

that the parties seeking damages, the victim's mother and sister,

had not formulated any observations when she had filed her

applications for release of December 1985, January, February,

March, November and December 1986, whereas they had energetically

opposed those of Mr Moysan; she reiterated this last argument in

her memorial of 10 April 1987.

25. The case followed its course. On 26 May 1987 the

investigating judge made an order terminating the investigation

and transmitting the papers to the public prosecutor's office.

On 1 July the Créteil public prosecutor lodged his final

submissions calling for the file to be transmitted to the

principal public prosecutor's office of the Court of Appeal.

This was ordered by the investigating judge on 8 July.

B. The trial proceedings

26. On 26 August 1987 the indictments division committed the

applicant for trial on a charge of

"having, in the course of 1985 in Val-de-Marne, being less

than ten years ago, been an accessory to the premeditated

murder of Bernard Merdy committed on 6 July 1985 by Gérard

Moysan, inasmuch as she had by gifts, promises, threats,

misuse of authority or power, incited the commission of this

deed or given instructions for its commission".

27. On 9 September 1987 the Créteil public prosecutor's office

advised Mrs Letellier's counsel that "the case [was] liable to be

heard during the first quarter of 1988". By a letter of

21 October 1987, however, the lawyer in question gave notice that

he would be unavailable from 1 February to 15 March 1988 on

account of his participation in another trial before the Assize

Court of the Vienne département.

28. On 23 March 1988 the public prosecutor informed the

accused's lawyer that the case would be heard on 9 and 10 May

1988. On 10 May 1988 the Val-de-Marne Assize Court sentenced Mrs

Letellier to three years' imprisonment for being an accessory to

murder. It sentenced Mr Moysan to fifteen years' imprisonment

for murder and acquitted Mr Bredon.

The applicant did not file an appeal on points of law; she

was released on 17 May 1988, the pre-trial detention being

automatically deducted from the sentence (Article 24 of the

Criminal Code).

II. The relevant legislation

29. The provisions of the Code of Criminal Procedure concerning

detention on remand, as applicable at the material time, are as

follows:

Article 144

"In cases involving less serious criminal offences

(matière correctionnelle), if the sentence risked is equal

to or exceeds one year's imprisonment in cases of flagrante

delicto, or two years' imprisonment in other cases, and if

the constraints of court supervision are inadequate in

regard to the functions set out in Article 137, the

detention on remand may be ordered or continued:

1° where the detention on remand of the accused is the sole

means of preserving evidence or material clues or of

preventing either pressure being brought to bear on the

witnesses or the victims, or collusion between the accused

and accomplices;

2° where this detention is necessary to preserve public

order from the disturbance caused by the offence or to

protect the accused, to put an end to the offence or to

prevent its repetition or to ensure that the accused remains

at the disposal of the judicial authorities.

... ."

(An Act of 6 July 1989 expressly provided that Article 144

was to be applicable to more serious criminal cases (matière

criminelle).)

Article 145

"In cases involving less serious criminal offences, an accused

shall be placed in detention on remand by virtue of an order

which may be made at any stage of the investigation and which

must give specific reasons with reference to the particular

circumstances of the case in relation to the provisions of

Article 144; this order shall be notified orally to the accused

who shall receive a full copy of it; receipt thereof shall be

acknowleged by the accused's signature in the file of the

proceedings.

As regards more serious criminal offences, detention is

prescribed by warrant, without a prior order.

...

The investigating judge shall give his decision in chambers,

after an adversarial hearing in the course of which he shall hear

the submissions of the public prosecutor, then the observations

of the accused and, if appropriate, of his counsel.

... ."

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, subject to the obligations laid down in

the preceding Article [namely: the undertaking of the person

concerned "to appear whenever his presence is required at the

different stages of the procedure and to keep the investigating

judge informed as to all his movements"].

The investigating judge shall communicate the file immediately

to the public prosecutor for his submissions. He shall at the

same time, by whatever means, inform the party seeking damages

who may submit observations. ...

The investigating judge shall rule, by an order giving specific

grounds under the conditions laid down in Article 145-1, not

later than five days following the communication to the public

prosecutor.

...

Where an order is made releasing the accused, it may be

accompanied by an order placing him under court supervision.

... ."

Article 194

"...

[The indictments division] shall, when dealing with the

question of detention, give its decision as speedily as possible

and not later than thirty days [fifteen since 1 October 1988]

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 from being decided within the time-limit laid down in the

present Article."

Article 567-2

"The criminal division hearing an appeal on a point of law

against a judgment of the indictments division concerning

detention on remand shall rule within three months of the

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

the accused shall automatically be released.

The appellant or his lawyer shall, on pain of having his

application dismissed, file his memorial setting out the

appeal submissions within one month of the file's reception,

save where exceptionally the president of the criminal

division has decided to extend the time-limit for a period

of eight days. After the expiry of this time-limit, no new

submission may be raised by him and memorials may no longer

be filed.

... ."

PROCEEDINGS BEFORE THE COMMISSION

30. In her application of 21 August 1986 to the Commission

(no.12369/86) Mrs Letellier complained that her detention on

remand had exceeded the "reasonable time" provided for in

Article 5 § 3 (art. 5-3) of the Convention. She alleged

furthermore that the various courts which had in turn examined

her application for release of 24 January 1986 had not ruled

"speedily" as is required under Article 5 § 4 (art. 5-4).

31. The Commission declared the application admissible on

13 March 1989. In its report of 15 March 1990 (Article 31)

(art. 31), it expressed the opinion that there had been a

violation of paragraph 3 (unanimously) and paragraph 4 (seventeen

votes to one) of Article 5 (art. 5-3, art. 5-4). The full text

of the Commission's opinion and the dissenting opinion

accompanying 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 207

of Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

32. At the hearing the Government confirmed the submission put

forward in their memorial, in which they asked the Court to "hold

that there [had] not been in this instance a violation of Article

5 §§ 3 and 4 (art. 5-3, art. 5-4) of the Convention".

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 3 (art. 5-3)

33. The applicant claimed that the length of her detention on

remand had violated Article 5 § 3 (art. 5-3), which is worded as

follows:

"Everyone arrested or detained in accordance with the

provisions of paragraph 1 (c) of this Article (art. 5-1-c),

... shall be entitled to trial within a reasonable time or

to release pending trial. Release may be conditioned by

guarantees to appear for trial."

The Government contested this view. The Commission

considered that after 22 January 1986 (see paragraph 13 above)

the grounds for Mrs Letellier's detention had no longer been

reasonable.

A. Period to be taken into consideration

34. The period to be taken into consideration began on

8 July 1985, the date on which the applicant was remanded in

custody, and ended on 10 May 1988, with the judgment of the

Assize Court, less the period, from 24 December 1985 to

22 January 1986, during which she was released subject to court

supervision (see paragraph 12 above). It therefore lasted two

years and nine months.

B. Reasonableness of the length of detention

35. It falls in the first place to the national judicial

authorities to ensure that, in a given case, the pre-trial

detention of an accused person does not exceed a reasonable time.

To this end they must examine all the facts arguing for or

against the existence of a genuine requirement of public interest

justifying, with due regard to the principle of the presumption

of innocence, a departure from the rule of respect for individual

liberty and set them out in their decisions on the applications

for release. It is essentially on the basis of the reasons given

in these decisions and of the true facts mentioned by the

applicant in his appeals, that the Court is called upon to decide

whether or not there has been a violation of Article 5 § 3

(art. 5-3) of the Convention (see, inter alia, the Neumeister

judgment of 27 June 1968, Series A no. 8, p. 37, §§ 4-5).

The persistence of reasonable suspicion that the person

arrested has committed an offence is a condition sine qua non for

the validity of the continued detention (see the Stögmüller

judgment of 10 November 1969, Series A no. 9, p. 40, § 4), but,

after a certain lapse of time, it no longer suffices; the Court

must then establish whether the other grounds cited by the

judicial authorities continue to justify the deprivation of

liberty (ibid., and see the Wemhoff judgment of 27 June 1968,

Series A no. 7, pp. 24-25, § 12, and the Ringeisen judgment of

16 July 1971, Series A no. 13, p. 42, § 104). Where such grounds

are "relevant" and "sufficient", the Court must also ascertain

whether the competent national authorities displayed "special

diligence" in the conduct of the proceedings (see the

Matznetter judgment of 10 November 1969, Series A no. 10, p. 34,

§ 12, and the B. v. Austria judgment of 28 March 1990, Series A

no. 175, p. 16, § 42).

36. In order to justify their refusal to release Mrs Letellier,

the indictments divisions of the Paris and Amiens Courts of

Appeal stressed in particular that it was necessary to prevent

her from bringing pressure to bear on the witnesses, that there

was a risk of her absconding which had to be countered, that

court supervision was not sufficient to achieve these objectives

and that her release would gravely disturb public order.

1. The risk of pressure being brought to bear on the

witnesses

37. The Government pointed out that the charges against

Mrs Letellier were based essentially on the statements of

Mr Moysan and Mr Bredon (see paragraph 9 above). The latter, who

was examined by the investigating judge on 25 November 1985,

could not, on account of his failure to appear, be confronted

with the accused on 17 December 1985. The need to avoid pressure

being brought to bear such as was liable to lead to changes in

the statements of witnesses at confrontations which were

envisaged was one of the grounds given in the decision of

22 January 1986 of the Paris indictments division (see paragraph

13 above).

38. According to the Commission, although such a fear was

conceivable at the beginning of the investigation, it was no

longer decisive after the numerous examinations of witnesses.

Moreover, nothing showed that the applicant had engaged in

intimidatory actions during her release subject to court

supervision (see paragraphs 12-13 above).

39. The Court accepts that a genuine risk of pressure being

brought to bear on the witnesses may have existed initially, but

takes the view that it diminished and indeed disappeared with the

passing of time. In fact, after 5 December 1986 the courts no

longer referred to such a risk: only the decisions of the Paris

indictments division of 22 January, 5 March, 10 April and

5 December 1986 (see paragraphs 13 and 23 above) regarded

detention on remand as the sole means of countering it.

After 23 December 1986 in any event (see paragraph 23

above), the continued detention was therefore no longer justified

under this head.

2. The danger of absconding

40. The various decisions of the Paris indictments division (see

paragraphs 13, 16, 18 and 23 above) were based on the fear of the

applicant's evading trial because of "the severity of the

sentence to which she was liable at law" and on the need to

ensure that she remained at the disposal of the judicial

authorities.

41. The Commission observed that during the four weeks for which

she had been released - from 24 December 1985 to 22 January

1986 - the applicant had complied with the obligations of court

supervision and had not sought to abscond. To do so would,

moreover, have been difficult for her, as the mother of minor

children and the manager of a business representing her sole

source of income. As the danger of absconding had not been

apparent from the outset, the decisions given had contained

inadequate statements of reasons in so far as they had mentioned

no circumstance capable of establishing it.

42. The Government considered that there was indeed a danger of

the accused's absconding. They referred to the severity of the

sentence which Mrs Letellier risked and the evidence against her.

They also put forward additional considerations which were not

however invoked in the judicial decisions in question.

43. The Court points out that such a danger cannot be gauged

solely on the basis of the severity of the sentence risked. It

must be assessed with reference to a number of other relevant

factors which may either confirm the existence of a danger of

absconding or make it appear so slight that it cannot justify

detention pending trial (see, mutatis mutandis, the Neumeister

judgment cited above, Series A no. 8, p. 39, § 10). In this case

the decisions of the indictments divisions do not give the

reasons why, notwithstanding the arguments put forward by the

applicant in support of her applications for release, they

considered the risk of her absconding to be decisive (see

paragraphs 14, 19 and 24 above).

3. The inadequacy of court supervision

44. According to the applicant, court supervision would have

made it possible to attain the objectives pursued. Furthermore,

she had been under such supervision without any problems arising

for nearly one month, from 24 December 1985 to 22 January 1986

(see paragraphs 12-13 above), and had declared her readiness to

accept it on each occasion that she sought her release (see

paragraphs 14, 19 and 24 above).

45. The Government considered on the other hand that court

supervision would not have been sufficient to avert the

consequences and risks of the alleged offence.

46. When the only remaining reason for continued detention is

the fear that the accused will abscond and thereby subsequently

avoid appearing for trial, he must be released if he is in a

position to provide adequate guarantees to ensure that he will so

appear, for example by lodging a security (see the Wemhoff

judgment, cited above, Series A no. 7, p. 25, § 15).

The Court notes, in agreement with the Commission, that the

indictments divisions did not establish that this was not the

case in this instance.

4. The preservation of public order

47. The decisions of the Paris indictments division

of 22 January, 5 March and 23 December 1986 and of 10 April and

24 August 1987 (see paragraphs 13 and 23 above), like that of the

Amiens indictments division of 17 March 1987 (see paragraph 21

above), emphasized the need to protect public order from the

disturbance caused by Mr Merdy's murder.

48. The applicant argued that disturbance to public order could

not result from the mere commission of an offence.

49. According to the Commission, the danger of such a

disturbance, which it understood to mean disturbance of public

opinion, following the release of a suspect, cannot derive solely

from the gravity of a crime or the charges pending against the

person concerned. In order to determine whether there was a

danger of this nature, it was in its view necessary to take

account of other factors, such as the possible attitude and

conduct of the accused once released; the French courts had not

done this in the present case.

50. For the Government, on the other hand, the disturbance to

public order is generated by the offence itself and the

circumstances in which it has been perpetrated. Representing an

irreparable attack on the person of a human being, any murder

greatly disturbs the public order of a society concerned to

guarantee human rights, of which respect for human life

represents an essential value, as is shown by Article 2 (art. 2)

of the Convention. The resulting disturbance is even more

profound and lasting in the case of premeditated and organised

murder. There were grave and corroborating indications to

suggest that Mrs Letellier had conceived the scheme of murdering

her husband and instructed third parties to carry it out in

return for payment.

51. The Court accepts that, by reason of their particular

gravity and public reaction to them, certain offences may give

rise to a social disturbance capable of justifying pre-trial

detention, at least for a time. In exceptional circumstances

this factor may therefore be taken into account for the purposes

of the Convention, in any event in so far as domestic law

recognises - as in Article 144 of the Code of Criminal

Procedure - the notion of disturbance to public order caused by

an offence.

However, this ground can be regarded as relevant and

sufficient only provided that it is based on facts capable of

showing that the accused's release would actually disturb public

order. In addition detention will continue to be legitimate only

if public order remains actually threatened; its continuation

cannot be used to anticipate a custodial sentence.

In this case, these conditions were not satisfied. The

indictments divisions assessed the need to continue the

deprivation of liberty from a purely abstract point of view,

taking into consideration only the gravity of the offence. This

was despite the fact that the applicant had stressed in her

memorials of 16 January 1986 and of 3 March and 10 April 1987

that the mother and sister of the victim had not submitted any

observations when she filed her applications for release, whereas

they had energetically contested those filed by Mr Moysan (see

paragraphs 14 and 24 in fine above); the French courts did not

dispute this.

5. Conclusion

52. The Court therefore arrives at the conclusion that, at least

from 23 December 1986 (see paragraph 39 above), the contested

detention ceased to be based on relevant and sufficient grounds.

The decision of 24 December 1985 to release the accused was

taken by the judicial officer in the best position to know the

evidence and to assess the circumstances and personality of

Mrs Letellier; accordingly the indictments divisions ought in

their subsequent judgments to have stated in a more clear and

specific, not to say less stereotyped, manner why they considered

it necessary to continue the pre-trial detention.

53. There has consequently been a violation of Article 5 § 3

(art. 5-3).

II. ALLEGED VIOLATION OF ARTICLE 5 § 4 (art. 5-4)

54. The applicant also alleged a breach of the requirements of

Article 5 § 4 (art. 5-4), according to which:

"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."

She claimed that the final decision concerning her

application for release of 24 January 1986, namely the Court of

Cassation's dismissal on 15 June 1987 of her appeal against the

decision of the indictments division of the Amiens Court of

Appeal of 17 March 1987 (see paragraphs 16, 21 and 22 above), was

not given "speedily". The Commission agreed.

55. The Government contested this view. They argued that the

length of the lapse of time in question was to be explained by

the large number of appeals filed by Mrs Letellier herself on

procedural issues: in thirteen months and three weeks the

indictments divisions gave three decisions and the Court of

Cassation two; the time which it took for these decisions to be

delivered was in no way excessive and could not be criticised

because it was in fact the result of the systematic use of

remedies available under French law.

56. The Court has certain doubts about the overall length of the

examination of the second application for release, in particular

before the indictments divisions called upon to rule after a

previous decision had been quashed in the Court of Cassation; it

should however be borne in mind that the applicant retained the

right to submit a further application at any time. Indeed from

14 February 1986 to 5 August 1987 she lodged six other

applications, which were all dealt with in periods of from eight

to twenty days (see paragraph 23 above).

57. There has therefore been no violation of Article 5 § 4

(art. 5-4).

III. APPLICATION OF ARTICLE 50 (art. 50)

58. According to Article 50 (art. 50),

"If the Court finds that a decision or a measure taken by

a legal authority or any other authority of a High

Contracting Party is completely or partially in conflict

with the obligations arising from the ... Convention, and if

the internal law of the said Party allows only partial

reparation to be made for the consequences of this decision

or measure, the decision of the Court shall, if necessary,

afford just satisfaction to the injured party."

Under this provision, the applicant claimed compensation for

damage and the reimbursement of costs.

A. Damage

59. Mrs Letellier sought in the first place 10,000 francs in

respect of non-pecuniary damage and 435,000 francs for pecuniary

damage; the latter amount was said to represent half the turnover

which her bar-restaurant could have achieved between her arrest

and the verdict of the assize court.

60. The Government did not perceive any causal connection

between the alleged breaches and the pecuniary damage resulting

for the applicant from her deprivation of liberty, which she

would in any case have had to undergo once convicted.

Furthermore, they considered that the finding of a violation

would constitute sufficient reparation for the non-pecuniary

damage.

61. The Delegate of the Commission expressed the view that she

should be awarded compensation for non-pecuniary damage and, if

appropriate, pecuniary damage, but did not put forward any

figure.

62. The Court dismisses the application for pecuniary damage,

because the pre-trial detention was deducted in its entirety from

the sentence. As to non-pecuniary damage, the Court considers

that the present judgment constitutes sufficient reparation.

B. Costs and expenses

63. For the costs and expenses referable to the proceedings

before the Convention institutions, Mrs Letellier claimed 21,433

francs.

64. The Government did not express an opinion on this issue.

The Delegate of the Commission left the quantum to be determined

by the Court.

65. The amount claimed corresponds to the criteria laid down by

the Court in its case-law and it accordingly considers it

equitable to allow the applicant's claims under this head in

their entirety.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 5 § 3

(art. 5-3);

2. Holds that there has been no violation of Article 5 § 4

(art. 5-4);

3. Holds that the respondent State is to pay to the applicant,

in respect of costs and expenses, 21,433 (twenty-one

thousand four hundred and thirty-three) French francs;

4. Dismisses the remainder of the claim for just satisfaction.

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

hearing in the Human Rights Building, Strasbourg, on

26 June 1991.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar