CASE OF NAVARRA v. FRANCE
Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 5-4
N. Valticos
7. Mr Paul Navarra, a farmer, lives in Bastia, Upper Corsica. On 22 November 1985 he was remanded in custody on a charge of armed robbery. During his detention on remand in Nice prison, he filed six applications for release. 8. An investigating judge of the Nice tribunal de grande instance dismissed the first two applications, lodged on 28 November and 30 December 1985, by orders of 2 December 1985 and 3 January 1986. No appeal was filed from the first order; the second was confirmed by the Indictment Division of the Aix-en-Provence Court of Appeal on 29 January 1986. 9. On 24 March 1986 the investigating judge also dismissed the third application, which had been made on 19 March. 10. On 23 April 1986 the Indictment Division found inadmissible the appeal filed by the applicant on 25 March against that decision, which it declared void inasmuch as it had been made in respect of an application which did not comply with procedural requirements, not having been filed in the manner prescribed in the Code of Criminal Procedure. 11. On 28 May 1986 the applicant appealed to the Court of Cassation, which received the file on 19 June. On 13 September 1986 it quashed the contested decision and remitted the case to the Indictment Division of the Montpellier Court of Appeal. 12. The file reached the registry on 1 October 1986. On 9 October the principal public prosecutor at the Montpellier Court of Appeal notified the applicant that the hearing had been set down for 21 October. In a memorial of 17 October 1986 Mr Navarra’s lawyer complained of the failure to comply with the time-limit within which, according to Article 194 of the Code of Criminal Procedure (see paragraph 18 below), the appeal of 25 March 1986 should have been examined. He also maintained that the matter had not been decided "speedily", as required by Article 5 para. 4 (art. 5-4) of the Convention. 13. On 24 October 1986 the Montpellier Indictment Division declared the appeal of 25 March 1986 ill-founded and confirmed the order made on 24 March dismissing the application for release of 19 March. It noted as follows: "... The proceedings followed a normal course and in these circumstances it does not appear that there was a failure to comply with the provisions of Article 194 of the Code of Criminal Procedure, as is claimed by Paul Navarra’s lawyer in his memorial. ..." 14. On 19 November 1986 the applicant appealed to the Court of Cassation, alleging that the Indictment Division had not replied to the submission based on Article 5 para. 4 (art. 5-4) of the Convention. The Court of Cassation dismissed this appeal on 24 February 1987, on the following grounds: "... the Indictment Division, which found, moreover correctly, that the judgment quashed had been given within the time-limit laid down in Article 194 of the Code of Criminal Procedure, replied sufficiently, albeit implicitly, to the submission in the memorial before it complaining of a failure to comply with the time-limit, and was not open to the criticism levelled in the second limb of the submission, which must accordingly be dismissed; ..." 15. On 20 March and 18 May 1987 the applicant lodged his fourth and fifth applications for release. The investigating judge of the Nice tribunal de grande instance dismissed them by orders of 25 March and 22 May, which were upheld by the Indictment Division of the Aix-en-Provence Court of Appeal on 21 April and 17 June 1987. On the other hand, on 27 November 1987 the investigating judge allowed the sixth and last application, which had been lodged two days earlier. 16. On 17 December 1987 the investigating judge made an order finding that Mr Navarra had no case to answer. 17. On 17 March 1988, pursuant to Article 149 of the Code of Criminal Procedure, the applicant sought 400,000 French francs in compensation for the detention on remand that he had undergone from 22 November 1985 to 27 November 1987. On 26 May 1989 the Compensation Board of the Court of Cassation declared the claim admissible but ill-founded. 18. As applicable at the material time, the relevant provisions of the Code of Criminal Procedure are as follows: "Whatever the classification of the offence, the accused or his lawyer may lodge at any time with the investigating judge an application for release ... The investigating judge shall immediately communicate the file to the public prosecutor for his submissions. He shall at the same time, by whatever means, inform any party seeking damages, who may submit observations ... The investigating judge shall rule, by an order giving specific grounds ..., not later than five days after the communication of the file to the public prosecutor. ... When an order is made releasing the accused it may be accompanied by an order placing him under court supervision. ..." The Law of 6 July 1989 added to the third paragraph a sentence, which is worded as follows: "However, where a decision has not yet been made on a previous application for release or on the appeal from a previous order refusing release, the five-day prescribed period begins to run with effect from the decision given by the investigating authority." "Any court called upon to rule ... on an application for release shall give its decision after hearing the prosecution and the accused or his counsel. Where the accused is not in custody, he and his counsel shall be summoned by registered letter at least forty-eight hours before the date of the hearing. The court hearing the application shall give its decision within ten days of receipt of the application at first instance or within twenty days of the appeal at second instance; ... where no decision is forthcoming on expiry of the above time-limits, the detention on remand shall be terminated and the accused, if not detained in connection with other matters, shall automatically be released. The [first instance] court’s decision shall be immediately enforceable notwithstanding any appeal; where the accused remains in detention, the Court of Appeal shall give its decision within twenty days of the appeal, failing which, if he is not detained in connection with other matters, the accused shall automatically be released." "... a person who has been held in detention on remand during proceedings which have been terminated in so far as he is concerned by a finding that he has no case to answer (non-lieu) that has become final or by an acquittal that has become final shall be entitled to compensation where such detention has caused him damage of a clearly exceptional and particularly serious nature." "The principal public prosecutor [at the Court of Appeal] shall prepare the case file for hearing within forty-eight hours of receiving the documents for questions relating to detention on remand, and within ten days in all other cases, and shall forward it, together with his submissions, to the Indictment Division. The Indictment Division shall, when dealing with questions relating to detention on remand, give its decision as speedily as possible and not later than thirty days after the appeal provided for in Article 186, failing which the accused shall automatically be released, except where verifications concerning his application have been ordered or where unforeseeable and insurmountable circumstances prevent the matter being decided within the time-limit laid down in the present Article." A Law of 30 December 1987, which came into force on 1 October 1988, reduced the time-limit from thirty to fifteen days. "The criminal division hearing an appeal on points of law against the decision of the Indictment Division concerning detention on remand shall rule within three months of the file’s receipt at the Court of Cassation, failing which the accused shall automatically be released. ..."