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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> P.L. v. FRANCE - 21503/93 [1997] ECHR 19 (2 April 1997) URL: http://www.bailii.org/eu/cases/ECHR/1997/19.html Cite as: 25 EHRR 481, (1998) 25 EHRR 481, [1998] 25 EHRR 481, [1997] ECHR 19

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In the case of P.L. v. France (1),

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 Rules of Court A (2), as a Chamber composed of

the following judges:

Mr R. Bernhardt, President,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mr B. Walsh,

Mr J. De Meyer,

Mr A.N. Loizou,

Sir John Freeland,

Mr D. Gotchev,

Mr B. Repik,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 20 March 1997,

Delivers the following judgment, which was adopted on that

date:

_______________

Notes by the Registrar

1. The case is numbered 76/1996/695/887. 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.

2. Rules A apply to all cases referred to the Court before the entry

into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only

to cases concerning States not bound by that Protocol (P9). They

correspond to the Rules that came into force on 1 January 1983, as

amended several times subsequently.

_______________

PROCEDURE

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

of Human Rights ("the Commission") on 28 May 1996, within the

three-month period laid down by Article 32 para. 1 and Article 47 of

the Convention (art. 32-1, art. 47). It originated in an application

(no. 21503/93) against the French Republic lodged with the Commission

under Article 25 (art. 25) by a French national, Mr P.L., on

20 July 1992. The applicant asked the Court not to reveal his

identity.

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. 1 of the Convention (art. 5-1).

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

para. 3 (d) of Rules of Court A, the applicant, who remained entitled

to legal aid for the representation of his case before the Court

(Rule 3 para. 1 of the Addendum to Rules of Court A), 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. Bernhardt, the Vice-President

of the Court (Rule 21 para. 4 (b)). On 10 June 1996, in the presence

of the Registrar, the President of the Court, Mr R. Ryssdal, drew by

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

Mr B. Walsh, Mr J. De Meyer, Mr A.N. Loizou, Sir John Freeland,

Mr D. Gotchev and Mr B. Repik (Article 43 in fine of the Convention and

Rule 21 para. 5) (art. 43).

4. As President of the Chamber (Rule 21 para. 6), Mr Bernhardt,

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 31 October 1996.

On 3 December 1996 the Secretary to the Commission informed the Court

that the Delegate did not wish to reply to the Government's memorial

in writing. The applicant did not file any observations.

5. On 8 January 1997 the Commission produced various documents

requested by the Registrar on the President's instructions.

6. On 3 February 1997 the Agent of the Government informed the

Registrar that the applicant had been granted a pardon by the President

of the French Republic remitting part of his sentence. In his letter

he enclosed a copy of the letter he had sent on the same day to

Mr P.L.'s lawyer, in which he wrote:

"I have the honour to inform you that Mr [P.L.] has just been

granted a presidential pardon amounting to one year and

eighteen days, that is the equivalent of the initial period of

your client's detention on remand in connection with the

proceedings declared null and void in the judgment of the

Indictment Division of the Amiens Court of Appeal of

3 October 1989.

Consequently, in so far as the pardon thus granted to

Mr [P.L.] meets the object of his application to the

Convention institutions very precisely, a friendly settlement

of the case could be reached.

If so, the hearing in respect of the case in which you

represent the applicant, at present due to take place before

the ... Court ... on 19 March 1997, would be pointless.

If your agreement on a friendly settlement of the case is not

forthcoming, the French Government would be minded to request

the Court to strike the case out of its list, on the basis of

Rule 49 para. 2 of the Rules of Court.

..."

7. On 25 February 1997 the Agent of the Government wrote to the

Registrar in the following terms:

"As you know, Mr [P.L.] has just been granted a

presidential pardon for the exact equivalent of the initial

period of his detention on remand in connection with the

proceedings subsequently declared null and void.

That being the case, it seems to me that further consideration

of the case is not justified, since the pardon thus granted to

Mr [P.L.] meets the object of his application to the

Convention institutions.

I therefore have the honour to request the Court to strike the

case out of its list, pursuant to Rule 49 para. 2 of the

Rules of Court.

I can also confirm that I wrote to Mr [P.L.]'s lawyer on

3 February 1997 with a view to reaching a friendly settlement.

To date, I have still not received a reply from him in

writing."

8. On 26 February 1997 the Registrar sent copies of these

two letters to the applicant's lawyer and the Delegate of the

Commission and asked them to send him their views on the information

and the application to have the case struck out contained in them.

9. On 3 March 1997 the Secretary to the Commission wrote to the

Registrar in the following terms:

"...

... The Delegate of the Commission considers that it is for

the applicant to decide whether the presidential pardon which

he has been granted constitutes sufficient redress in the

present case. If so, having regard to the fact that in the

past the granting of a pardon has been the basis for

friendly settlements reached before the Commission, where the

latter took the view that the settlement thus reached was

based on respect for human rights, the Delegate would not

oppose the Government's application for the case to be struck

out of the list..."

10. On 5 March 1997 the President decided to adjourn sine die the

public hearing due to take place on 19 March 1997.

11. On 12 March 1997 the Agent of the Government sent the Registrar

a copy of a letter that had been sent by the Minister of Justice to the

Minister of Foreign Affairs on 11 March, informing him that the pardon

in question had been granted by the President of the Republic in the

form of a decree dated 27 January 1997.

12. On 14 March 1997 the Registrar received a letter from the

applicant's lawyer informing him that Mr P.L. "[was] not proceeding

with his application (se désist[ait] de sa demande)".

13. On 20 March 1997 the Court decided to dispense with a hearing

in the case, having satisfied itself that the conditions for this

derogation from its usual procedure had been met (Rules 26 and 38).

AS TO THE FACTS

14. On 9 July 1983 Mr P.L. married Mrs R.V., who had

three daughters from a previous marriage, Catherine, Cathy and Sophie,

born on 5 November 1971, 8 January 1973 and 31 January 1975

respectively.

15. In September 1988 Catherine, who was about twenty weeks'

pregnant, told the educational welfare officer attached to her school

that her stepfather had been abusing her for several years. This

information was passed on to the public prosecutor's office and a

preliminary investigation was undertaken by the gendarmerie. Catherine

stood by her allegations and Cathy and Sophie stated that the applicant

had also imposed sexual relations on them. Mr P.L. admitted the

offences involving the two elder children.

A. The judicial investigation

1. The first set of proceedings

16. On 16 September 1988 Mr P.L. was informed that he was under

judicial investigation on suspicion of a number of offences of rape of

a person under 15 by a person in a position of authority and rape by

a person in a position of authority, and remanded in custody.

17. On 18 September 1989 the public prosecutor's office asked the

Indictment Division of the Amiens Court of Appeal to declare null and

void the order appointing the investigating judge and all subsequent

decisions on the ground that the order did not bear the signature in

his own hand of the president of the Laon tribunal de grande instance,

but a stamp reproducing his signature.

In a judgment of 3 October 1989 the Indictment Division allowed

this application on the following grounds:

"...

A stamped signature cannot confer authenticity, which is

provided only by the original signature of the document in its

author's own hand; ...

It follows that all the decisions of [the investigating judge]

were taken by a judge not validly appointed, and are therefore

null and void;

..."

Mr P.L. was released on the same day.

2. The second set of proceedings

18. Another investigating judge had been appointed on

22 August 1989. On 5 December 1989 he informed the applicant that he

was under investigation on suspicion of a number of offences of rape

of a person under 15 by a person in a position of authority and rape

by a person in a position of authority, and remanded him in custody.

B. The trial

19. In a judgment of 18 October 1991 the Indictment Division of the

Amiens Court of Appeal committed Mr P.L. for trial at the

Aisne Assize Court.

On 25 March 1992 the Assize Court accepted that there were

mitigating circumstances in Mr P.L.'s favour and sentenced him to

seventeen years' imprisonment on a number of counts of aggravated rape.

C. The applications for reduction of sentence

20. Mr P.L. unsuccessfully requested the judge responsible for the

execution of sentences to deduct one year and eighteen days, that is

the equivalent of the time he had spent in prison during his initial

period of detention on remand, from his sentence.

He then wrote to the Laon public prosecutor, who replied on

19 May 1992 in the following terms:

"... I have the honour to repeat the explanations which have

already been given to you on many occasions, particularly by

the judge responsible for execution of sentences:

As the judicial investigation prior to 3 October 1989 was

declared null and void, your detention on remand from

16 September 1988 to 3 October 1989 is in law deemed never to

have taken place.

Consequently, that period, of which the Assize Court was aware

when it sentenced you, cannot be deducted from the sentence of

seventeen years' imprisonment imposed on you on 25 March 1992.

..."

21. The governor of Laon Prison, where the applicant was held,

alerted the management of the Prison Service at the Ministry of Justice

to the applicant's situation. The head of the Office for the

Individualisation of Prison Sentences replied in a memorandum of

14 November 1992:

"... The period of Mr P.L.'s detention on remand in connection

with the first judicial investigation cannot ... be taken into

account for the execution of his sentence since it took place

during proceedings which have been declared null and void and

for that reason are deemed never to have existed.

However, it remains open to Mr P.L. to petition the

President of the Republic for a pardon, seeking special

remission of part of his sentence, regard being had to his

legal position."

22. On 8 April 1994 the applicant petitioned the French President

for a pardon, seeking remission of part (one year and eighteen days)

of his sentence. This petition was dismissed on 28 February 1995 but

reconsidered and granted on 27 January 1997 (see paragraphs 6 and 11

above).

PROCEEDINGS BEFORE THE COMMISSION

23. Mr P.L. applied to the Commission on 20 July 1992. Without

relying on any specific provision of the Convention, he complained of

the fact that the term of imprisonment to which he had been sentenced

had not been reduced by the length of his initial period of detention

on remand in connection with a judicial investigation subsequently

declared null and void.

24. The Commission considered this complaint under Article 5

para. 1 and Article 14 of the Convention (art. 5-1, art. 14). On

16 October 1995 it declared the application (no. 21503/93) admissible.

In its report of 11 April 1996 (Article 31) (art. 31), it expressed the

opinion that there had been a violation of Article 5 para. 1 (art. 5-1)

(twenty-five votes to three) and that it was not necessary to consider

separately whether there had been a violation of Article 14 taken in

conjunction with Article 5 para. 1 (art. 14+5-1) (unanimously). The

full text of the Commission's opinion and of the dissenting opinion

contained in the report is reproduced as an annex to this judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1997-II), but a copy of the Commission's report is obtainable

from the registry.

_______________

AS TO THE LAW

25. Rule 49 of Rules of Court A provides:

"...

2. When the Chamber is informed of a friendly settlement,

arrangement or other fact of a kind to provide a solution of

the matter, it may, after consulting, if necessary, the

Parties, the Delegates of the Commission and the applicant,

strike the case out of the list.

The same shall apply where the circumstances warrant the

conclusion that the applicant does not intend to pursue his

complaints or if, for any other reason, further examination of

the case is not justified.

...

4. The Chamber may, having regard to the responsibilities of

the Court under Article 19 of the Convention (art. 19), decide

that, notwithstanding the notice of discontinuance,

friendly settlement, arrangement or other fact referred to in

paragraphs 1 and 2 of this Rule, it should proceed with the

consideration of the case."

26. The Government informed the Court that, in a decree of

27 January 1997, the President of the French Republic had granted the

applicant a pardon remitting a portion of his sentence (one year and

eighteen days) equivalent to the period of detention on remand in issue

(see paragraphs 6, 11 and 22 above). They considered that the pardon

"[met] the object of [the] application to the Convention institutions

very precisely" and consequently requested that the case be struck out

of the Court's list (see paragraphs 6-7 and 11 above).

The Delegate of the Commission was consulted and stated that

it was for the applicant to say whether he considered that the

presidential pardon which he had been granted constituted sufficient

redress, and that if the applicant did so consider, he would not oppose

the application for the case to be struck out of the list

(see paragraph 9 above).

Subsequently, the applicant's lawyer informed the Registrar

that his client "[was] not proceeding with his application

(se désist[ait] de sa demande)" (see paragraph 12 above).

27. The Court observes that the Government and the applicant have

not reached a "friendly settlement" within the meaning of Rule 49

para. 2, but that the applicant has stated that he "is not proceeding

(se désiste)".

It further notes that the pardon granted in the decree of

27 January 1997 gave the applicant what he was seeking from the

French authorities. His imprisonment will be one year and

eighteen days shorter, just as if his first period of detention on

remand had been deducted from his sentence. Moreover, he was granted

legal aid before the Commission and the Court and has not made any

claim under Article 50 of the Convention (art. 50). That being so, the

circumstances described above may be regarded as an "arrangement or

other fact of a kind to provide a solution of the matter" within the

meaning of Rule 49 para. 2. Moreover, there is no reason of

public policy why the case should not be struck out of the list

(Rule 49 paras. 2 and 4). The case should therefore be struck out of

the list.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Decides to strike the case out of the list.

Done in English and in French, and notified in writing under

Rule 55 para. 2, second sub-paragraph, of Rules of Court A on

2 April 1997.

Signed: Rudolf BERNHARDT

President

Signed: Herbert PETZOLD

Registrar