U.N. Doc. CCPR/C/86/D/1228/2003

 

Communication No. 1228/2003

27 March 2006

 
     

human rights committee

  86th Session  
  13-31 March 2006  
     
     

Jérôme Lemercier

 

v.

France

     
     
 

Decision

 
     
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BEFORE:

CHAIRPERSON: Ms. Christine Chanet (France)

VICE-CHAIRPERSONS: Mr. Maurice Glele Ahanhanzo (Benin), Ms. Elisabeth Palm (Sweden), Mr. Hipolito Solari Yrigoyen (Argentina)

RAPPORTEUR: Mr. Ivan Shearer (Australia)

MEMBERS: Mr. Abdelfattah Amor (Tunisia), Mr. Mr. Nisuke Ando (Japan), Mr. Prafullachandra Natwarlal Bhagwati (India), Alfredo Castillero Hoyos (Panama), Mr. Edwin Johnson Lopez (Ecuador), Mr. Walter Kalin (Switzerland), Mr. Ahmed Tawfik Khalil (Egypt), Mr. Rajsoomer Lallah (Mauritius), Mr. Michael O’Flaherty (Ireland), Mr. Rafael Rivas Posada (Colombia), Sir Nigel Rodley (United Kingdom), Ms. Ruth Wedgwood (United States), Mr. Roman Wieruszewski (Poland)

   
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Citation: Lemercier and Lemercier v. France, Comm. 1228/2003, U.N. Doc. A/61/40, Vol. II, at 553 (HRC 2006)
Alt. Style of Cause: Lemercier v. France
Publications:

Report of the Human Rights Committee, U.N. GAOR, 61st Sess., Supp. No. 40, U.N. Doc. A/61/40, Vol. II, Annex VI, sect. Q, at 553 (Jan.1, 2006)

 
     
 
 
     
  1. The original author of the communication, dated 15 April 2003, was Michel Lemercier, a French national. This person died on 8 May 2004, but his son, Jérôme Lemercier, said he wished to maintain the communication. The author claimed to be the victim of a violation by France of article 15, paragraph 1, of the International Covenant on Civil and Political Rights. He is represented by counsel. The Optional Protocol entered into force for France on 17 May 1984.

FACTUAL BACKGROUND

2.1 On 23 February 1996, the Rhône Assize Court found the author guilty of robbery and attempted armed robbery, committed as part of an organized gang, with violence, of the restraint and detainment of persons and of various related offences, committed between 1985 and 1990. The court sentenced him to rigorous imprisonment for life, subject to an 18-year period of unconditional detention.

2.2 On 26 February 1996, the author lodged an appeal on a point of law. In a decision of 5 February 1997, the Criminal Division of the Court of Cassation quashed the sentence of life imprisonment on the grounds that it was "legally unfounded". Article 112-1 of the new Criminal Code (which came into effect on 1 March 1994) provides that:

- The new provisions shall apply to offences committed prior to their entry into force and not yet subject to a final sentence where they are less severe than the earlier provisions.

- The Court of Cassation considered that the author had been sentenced by the Rhône Assize Court to life imprisonment for offences of robbery preceded, accompanied or followed by acts of violence causing death on the basis of article 311-10 of the new Criminal Code. This penalty was heavier, however, than that provided for by article 384 of the former Criminal Code, under which the sentence was 10 to 20 years' rigorous imprisonment. On the other hand, the Court of Cassation recalled that the author had also been found guilty of armed robbery and, in view of the aggravating circumstance of "an offence committed as part of an organized gang", sentenced the author to 30 years' rigorous imprisonment, in accordance with article 311-9 of the new Criminal Code.

2.3 On 28 May 1999, the author lodged a complaint with the Public Prosecutor at the Appeal Court of Lyon seeking to reduce the maximum penalty applicable under the former Criminal Code in force at the time of the events to 20 years instead of 30. In a decision of 14 December 1999, the Indictments Chamber of the Appeal Court of Lyon found the complaint inadmissible, on the grounds that it sought a substantive review of the sentencing decision taken by the Assize Court given in the two aforementioned rulings of 23 February 1996 and 5 February 1997.

2.4 The author lodged two appeals against the decision of the Indictments Chamber of the Court of Appeal of Lyon, dated 17 and 31 December 1999 respectively. On 26 September 2000, delivering its ruling on the author's appeals, the Criminal Division of the Court of Cassation dismissed the first appeal on the grounds that the Court of Cassation's decision of 5 February 1997 showed no factual error. It found the second appeal inadmissible on the grounds that the author had exhausted his right to appeal against the impugned decision by lodging his first appeal.

2.5 The author filed a complaint with the European Court of Human Rights, which declared it inadmissible on 24 June 2002 on the grounds that it was time-barred.

2.6 On 28 August 2003, the author filed a further petition with the Investigation Chamber of the Court of Appeal of Riom, seeking rectification of the factual error contained in the Assize Court's ruling. By decision of 17 February 2004, the Investigation Chamber of the Court of Appeal of Riom decided that there were no grounds for reducing the period of unconditional imprisonment and that it was not competent to give a ruling on the request for rectification of a factual error.

THE COMPLAINT

3. The author contends that the purpose of his appeals was to challenge not the facts or the penalty applied to him, but the length of the sentence legally applicable at the time of the facts, namely 20 years of rigorous imprisonment in accordance with the former article 384 of the Criminal Code. He argues that the sentence of 30 years of rigorous imprisonment passed by the Court of Cassation pursuant to article 311-9 of the new Criminal Code is legally unfounded on the grounds that aggravating circumstances were not mentioned in the committal order of 16 May 1995 and could therefore not be raised at the hearing before the Assize Court. He contends that he was the victim of a breach of article 15 (1) of the Covenant.

THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND THE MERITS OF THE COMMUNICATION

4.1 In a note verbale of 28 January 2004, the State party disputes the admissibility of the communication. It recalls that a reservation has been made to article 5, paragraph 2 (a), of the Optional Protocol, specifying that the Committee shall not have competence to consider a communication from an individual if the same matter is being examined or has already been considered under another procedure of international investigation or settlement. It notes further that the case has already come before the European Court of Human Rights and concludes that it can therefore no longer be considered by the Committee, in accordance with the Committee's own case law. [FN1]

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[FN1] See A.M. v. Denmark, communication No. 121/1982, Views adopted on 23 July 1982, para. 6.
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4.2 The State party submits that the said reservation is fully applicable in this case and that considering it inapplicable for the reason that the case was found inadmissible by the European Court of Human Rights for exceeding the six-month time limit would be tantamount to restricting the reservation exclusively to cases which have been considered on the merits. It recalls that the reservation mentions only "examination" of the case and not examination "on the merits". It concludes that the only reasonable interpretation that can be given to the notion of "examination" of the case within the meaning of the reservation is any examination.

4.3 In a note verbale of 27 May 2004, the State party again disputes the admissibility of the communication. It argues firstly that the complaint has no more cause of action since the author is deceased. Secondly, it still considers the petition inadmissible on the grounds that it has already been examined by another international body. [FN2] Lastly it argues that the petition is also inadmissible because it was submitted to the Committee before domestic remedies had been exhausted. It notes that the author appealed to the Investigation Chamber of the Court of Appeal of Riom for rectification of factual error and release. As this petition was dismissed by the decision of 17 February 2004, the State party considers that the author had the possibility of appealing against that decision on a point of law and thus that the domestic remedies were not exhausted when the matter was first brought before the Committee.

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[FN2] See V.E.M. v. Spain, communication No. 467/1991, Views adopted on 16 July 1993, para. 5.2; see also Trébutien v. France, communication No. 421/1990, Views adopted on 18 July 1994, para. 6.3.
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4.4 Regarding the merits of the communication, the State party rejects any violation of article 15 (1). It points out in the first place that the principles governing the application over time of substantive criminal law, which incriminates acts and establishes the corresponding penalties, meet the objectives of that provision where French law is concerned. It recalls that in French criminal law the general principle is that new legislation applies to all offences committed after its entry into force. It points out, however, that the non-retroactivity of the criminal law applies only in cases where the new legislation is more severe, and that if the new legislation is more favourable to the offender (either because the penalty imposed by the new law is more lenient or because the offence has been abolished), it will apply even to offences committed prior to its entry into force. These principles are enshrined in the case law of the Constitutional Council (decision 80-127 DC of 19-20 January 1981) and expressly confirmed in article 112-1 of the new Criminal Code. The State party concludes, therefore, that the principles in French law governing the application over time of substantive criminal law meet the requirements of article 15, paragraph 1.

4.5 Secondly, the State party contends that there was no violation of article 15, paragraph 1, in the present case. It considers that the sentence passed on the author complied with the laws applicable to the offences with which he was charged. It recalls that the author was found guilty, on 23 February 1996, by the Rhône Assize Court, of the offences of robbery and attempted armed robbery, committed as part of an organized gang, with violence - on one occasion leading to the death of two victims - of aggravated handling of stolen goods, of unlawful restraint and detainment of persons and of armed violence, all committed between 1985 and 1990. It recalls that in the event of multiple offences, the heaviest sentence may be passed under the terms of article 132-3 of the new Criminal Code. It thus concludes that, according to the new Criminal Code, the author was indeed liable to the heaviest penalty of 30 years of rigorous imprisonment, since the offence of detainment for criminal purposes, formerly punishable by rigorous imprisonment for life, is now punishable with 30 years of rigorous imprisonment. According to the State party, the Court of Cassation correctly applied the rules of retroactivity of the more lenient criminal legislation and accumulated sentences by subjecting the author to 30 years of rigorous imprisonment. It points out that in claiming that he should have received the prescribed sentence of 10 to 20 years' rigorous imprisonment, the author fails to mention that the Assize Court also found him guilty of detainment for the purpose of facilitating armed robbery as part of an organized gang. Thus the author's complaint really amounts to challenging the fact that he was given the heaviest sentence (30 years) provided for one of the offences for which he was found guilty, as the competent court was allowed to rule under article 132-3 of the new Criminal Code. The State party therefore considers that the communication should in any case be rejected as unfounded.

THE AUTHOR'S COMMENTS ON THE STATE PARTY'S OBSERVATIONS

5.1 In his comments of 6 October 2004, the author's son notes that by letter dated 15 June 2004 he expressly authorized counsel to continue the procedure. Regarding the State party's argument that domestic remedies were not exhausted, the author's son recalls that his father was sentenced by final judgement of the Assize Court, after which he appealed to the Director of the Riom Detention Centre, then to the Investigation Chamber of the Appeal Court of Riom, which rejected his appeal on 17 February 2004. He considers therefore that his father sufficiently drew the attention of the public authorities to his situation. As for the State party's argument that since the communication was found inadmissible by the European Court of Human Rights, it should also be found inadmissible by the Committee because it had already been examined, the author's son points out that the complaint was previously found inadmissible by the European Court of Human Rights on the grounds that the author had filed it after the expiry of the six-month time limit. Since the complaint was dismissed without even summary consideration of the facts by the European Court of Human Rights, the latter's ruling of inadmissibility cannot be considered to be an examination within the meaning of the Protocol, so that the communication is perfectly admissible.

5.2 On the merits, the author's son reiterates that the Court of Cassation could not hold against his father the aggravating circumstance of offences committed as part of an organized gang insofar as the former Criminal Code made no provision for that aggravating circumstance, which was introduced under the new Criminal Code (art. 224-3), in other words after the events. He also reiterates that aggravating circumstances could not legally be held against the author insofar as such circumstances were not mentioned in the committal order and could therefore not be raised before the Assize Court. Consequently, the applicable penalty should be limited to 20 years' imprisonment and not 30 as decided by the Court of Cassation, so that there was clearly a violation of article 15, paragraph 1.

ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE

6.1 Before considering any claim contained in a communication, the Human Rights Committee must decide, in accordance with rule 93 of its rules of procedure, whether the claim is admissible under the Optional Protocol to the Covenant.

6.2 Regarding the author's demise, the Committee recalls that the author's descendants may decide to continue the communication after the author's death. [FN3] It notes that the author's son clearly expressed a wish to continue the procedure before the Committee and supplied proof that he was the author's descendant. The Committee observes that while it may revisit the question of which claims formulated by a complainant survive his or her death, there is nothing in the present case that would prevent the Committee from considering the admissibility of the claim.

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[FN3] See Croes v. Netherlands, communication No. 164/1984, decision of inadmissibility adopted on 7 November 1988; and Brok v. Czech Republic, communication No. 774/1997, Views adopted on 31 October 2001.
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6.3 In accordance with article 5, paragraph 2 (a), of the Optional Protocol, the Committee has ascertained that a similar complaint filed by the author had been found inadmissible on the grounds that it was time-barred by the European Court of Human Rights on 24 June 2002 (complaint No. 51051/99). It also recalls that at the time it subscribed to the Optional Protocol the State party entered a reservation to article 5, paragraph 2 (a), of that Protocol specifying that the Committee "shall not have competence to consider a communication from an individual if the same matter is being examined or has already been considered under another procedure of international investigation or settlement". It takes note of the State party's argument whereby the notion of "examination" of the matter in the meaning of the reservation signifies any examination. This interpretation of the notion of an "examination" of the case is not shared by the Committee, however, since it would be tantamount to applying the State party's reservation to any communication referred to the European Court of Human Rights and receiving a response of any kind whatever. The Committee considers that the European Court of Human Rights did not examine the case in the meaning of article 5, paragraph 2 (a), insofar as its decision concerned only a procedural issue. [FN4] Therefore, no impediment arises with regard to article 5, paragraph 2 (a), of the Optional Protocol as modified by the State party's reservation.

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[FN4] See Bertelli Gálvez v. Spain, communication No. 1389/2005, decision of inadmissibility adopted on 25 July 2005, para. 4.3; and O.F. v. Norway, communication No. 158/1983, Views adopted on 26 October 1984, para. 5.2.
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6.4 With regard to the exhaustion of domestic remedies, the Committee has noted the State party's arguments whereby the author had not exhausted domestic remedies at the time the matter was brought before the Committee and that he subsequently continued to avail himself of domestic remedies which were not yet exhausted. It recalls its normal practice, however, according to which the issue of the exhaustion of domestic remedies is decided at the time it is considered by the Committee, save in exceptional circumstances, [FN5] which do not apply in this case. It notes that the author made all reasonable attempts to challenge the length of his prison sentence, including before the Criminal Division of the Court of Cassation. The Committee therefore considers that domestic remedies have been exhausted.

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[FN5] See Baroy v. Philippines, communication No. 1045/2002, Views adopted on 31 October 2003, para. 8.3; and Bakhtiyari v. Australia, communication No. 1069/2002, Views adopted on 29 October 2003, para. 8.2.
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6.5 With regard to the complaint of a violation of article 15, paragraph 1, the Committee shares the State party's arguments that the sentence received by the author was not more severe than that which was applicable, at the time of the events, to the acts constituting the offences for which the author was sentenced. It therefore considers that the author has not substantiated his complaint for the purposes of admissibility, and that this claim is inadmissible under article 2 of the Optional Protocol.

7. The Committee therefore decides:

(a) That the communication is inadmissible under article 2 of the Optional Protocol;
(b) That this decision shall be communicated to the State party and to the author's son.

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Adopted in English, French and Spanish, the French text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee's annual report to the General Assembly.

Pursuant to rule 90 of the Committee's rules of procedure, Ms. Christine Chanet did not participate in the examination of this communication.
 
     

 

 

 

   

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