CASE OF LAUMONT v. FRANCE
No violation of Art. 5-1
Christos Rozakis
8. On 12 November 1994 four armed robbers wearing masks entered the premises of a transport company which employed a number of inmates from Poissy Prison who were in semi-detention or on external work assignments. After locking the entire staff in the lavatories, they forced the company manager, whom they had taken hostage, to open the safe, from which they stole 120,000 French francs (FRF) in cash before making off. The investigators concentrated their inquiries on some of the prison inmates. One of them, G.D., had witnessed the offences and been threatened by the robbers. 9. On 13 January 1995 the managing director of the company had a cheque stolen. The home of one of the company’s employees, E.M., was searched and a forged identity card bearing the applicant’s photo was discovered, together with a sawn-off shotgun. The employee admitted that he had provided the applicant with information to help him commit the armed robbery in return for the sum of FRF 10,000. He also stated that he had recognised the applicant while the offence was being committed despite the mask he had been wearing and that the applicant was the robber who had been carrying the sawn-off shotgun. 10. On 19 January 1995 the investigating judge at the Versailles tribunal de grande instance decided to have the applicant detained pending trial and issued a warrant of commitment for armed robbery, false imprisonment, and wounding with intent and wilful violence resulting in total unfitness for work for less than eight days. 11. On 18 January 1996 the investigating judge made an order extending detention for four months from 19 January 1996. 12. The applicant’s detention was twice extended for a further four months, on 14 May 1996 from 19 May onwards and on 13 September 1996 from 19 September onwards. 13. On 30 September 1996 the investigating judge substituted for the charge of false imprisonment with voluntary release (an intermediate offence (délit)) the more serious one of false imprisonment (crime) and made a partial discharge order. In accordance with Article 181 of the Code of Criminal Procedure, he ordered that the file be transferred to the public prosecutor’s office at the Versailles Court of Appeal with a view to the Indictment Division indicting the applicant and committing him for trial at the Assize Court. That order was served on the applicant on 3 October 1996. 14. In a judgment of 27 November 1996 the Indictment Division of the Versailles Court of Appeal ordered further investigations to be made and appointed for that purpose the investigating judge at the Versailles tribunal de grande instance who had previously been in charge of the investigation. 15. On 20 January 1997 the applicant requested that a bailiff be called on to record officially that his detention had become unlawful as the last order extending it, dated 13 September 1996 and effective from midnight on 19 September 1996 for a period of four months, had expired at midnight on 19 January 1997. 16. In a formal demand for information (sommation interpellative) addressed to the governor of Fresnes Prison the bailiff asked to be sent the detention order by virtue of which the applicant was still being held in his prison. In reply he was told that the applicant was being detained under the transfer order of 30 September 1996 and the Versailles Court of Appeal’s judgment of 27 November 1996. 17. The applicant stated that he had lodged a complaint with the Créteil public prosecutor alleging arbitrary detention but had received no reply. 18. On 9 April 1997 the applicant made an application to the Indictment Division for his immediate release on the ground that he was being detained arbitrarily as the judge’s initial warrant of commitment had ceased to have any effect on 19 January 1997. 19. In a judgment of 25 April 1997 the Indictment Division dismissed that application for the following reason: “It is not disputed that the judgment of 27 November 1996 was delivered within the time laid down by the last paragraph of Article 214 of the Code of Criminal Procedure. Consequently, since the Indictment Division did not rule on the facts being investigated, the warrant of commitment issued by the investigating judge continued to have effect. …” 20. In the same judgment the Indictment Division ordered that the applicant should be kept in custody to avoid all risk of pressure being brought to bear on witnesses or collusion and because he could not provide sufficient sureties that he would appear for trial. 21. The applicant appealed on points of law, relying on grounds of appeal based, firstly, on an infringement of Article 725 of the Code of Criminal Procedure and, secondly, on a breach of Articles 201 and 214 of the Code of Criminal Procedure and Article 5 of the Convention. 22. In a judgment of 19 August 1997 the Court of Cassation dismissed the appeal on the following grounds: “It appears from the impugned judgment and the documents on the file that on 19 January 1995 a warrant of commitment was issued in respect of [the applicant], who was under investigation for offences including armed robbery. On expiry of its validity a year later, the investigating judge extended the detention three times for four months, the final extension taking effect on 19 September 1996. On 27 November 1996, following the investigating judge’s transfer order of 30 September 1996, the Indictment Division ordered further investigations. [The applicant] made an application to the Indictment Division for his release, alleging that the detention order had ceased to be valid on 19 January 1997 and that he had been unlawfully detained since that date; that application was refused in the judgment now appealed against. In so ruling, the investigating court did not lay itself open to the objections raised. Since the judges ordered further investigations within the time allowed by Article 214, third paragraph, of the Code of Criminal Procedure, the initial warrant of commitment remained effective, in accordance with Article 181, second paragraph, of the Code, after the transfer order was issued and so remains until a decision on indictment is taken …” 23. On 10 September 1997, after completion of the further investigations, the Indictment Division directed that the applicant be committed for trial at the Yvelines Assize Court charged with armed robbery, false imprisonment and other connected lesser offences. The judgment committing the applicant for trial at the Assize Court also contained an order for him to be remanded in custody. An appeal on points of law by the applicant against that judgment was dismissed by the Court of Cassation on 18 December 1997. 24. On 9 and 10 June 1998 the applicant was tried at the Versailles Assize Court, which sentenced him to ten years’ imprisonment. In a judgment delivered on the same day on the civil claims the applicant was ordered to pay the civil party FRF 50,000 in damages. 25. In a judgment of 3 March 1999 the Court of Cassation dismissed appeals on points of law by the applicant against the Assize Court’s judgments. 26. The relevant provisions of the Code of Criminal Procedure, as worded before the passing of the Law of 15 June 2000 reinforcing the presumption of innocence and the rights of victims, provide as follows: “The investigating judge may issue … a … warrant of commitment ... The warrant of commitment is the order given by an investigating judge to a prison governor to admit the person and take him into custody …” “The investigating judge may issue a warrant of commitment only after examining the person concerned and if the penalty is imprisonment for an intermediate offence [peine d’emprisonnement correctionnelle] or for a more serious offence. In cases involving serious offences [matière criminelle] or intermediate offences [matière correctionnelle], warrants of commitment may only be issued pursuant to the order provided for in Article 145 …” “Whatever the classification of the offence, any decision to detain pending trial must be embodied in an order setting out the legal and factual reasons for the decision with reference solely to the provisions of Article 144. The person concerned shall be informed orally of the order and be given a complete copy of it … However, the investigating judge may not order the immediate detention of the accused if he or his lawyer requests time for the preparation of his defence. In that case the investigating judge may, in an order that is reasoned with reference to the provisions of the preceding paragraph and against which no appeal shall lie, direct that the person be taken into custody for a fixed period, which may in no case exceed four working days. Within that period he shall again have the person brought before him … If he does not order detention of the person pending trial, the latter shall automatically be released …” “In cases involving serious offences [matière criminelle] an accused cannot be held in detention for more than one year. However, subject to the provisions of Article 1453, the investigating judge may, at the end of that period, decide to prolong detention for a period not exceeding six months by means of a decision made in accordance with the provisions of the first and fourth paragraphs of Article 145, his lawyer having been summoned in accordance with the provisions of the second paragraph of Article 114. That decision shall be renewable by means of the same procedure. The provisions of this Article shall apply until the disposal order is made.” “An application for release may … be made by any accused for any reason and at any stage in the proceedings. Where application is made to a court of trial or appeal, it shall be for the latter to grant conditional release; before committal for trial at the Assize Court, and in between Assize Court sessions, that power belongs to the Indictment Division …” “If the investigating judge considers that the facts amount to an offence classified in law as a serious offence [crime], he shall order that the case file and a list of the exhibits be sent immediately by the public prosecutor to the Principal Public Prosecutor at the Court of Appeal with a view to proceeding as set out in the chapter on the Indictment Division. Warrants for the arrest or commitment of an accused shall remain in force until the Indictment Division has given its ruling.” “The Indictment Division may in all cases, at the request of the Principal Public Prosecutor, of one of the parties or even of its own motion, order any additional investigative measure which it considers useful. It may also in all cases order the release of the accused of its own motion after hearing the prosecutor.” “If the offences with which the accused are charged are classified in law as a serious offence [crime], the Indictment Division shall commit the accused for trial at the Assize Court. It may also refer connected offences to that court. The Indictment Division shall give its ruling within two months of the date of the transfer order, failing which the accused shall automatically be released.” “Persons ordered to be detained pending trial or sentenced to imprisonment shall be admitted to a prison. A memorandum of imprisonment shall be drawn up for any person who is taken to a prison or reports to a prison of his own accord.” “Members of the prison service shall not, on pain of prosecution and punishment for arbitrary detention, admit or detain any person except in pursuance of a judgment imposing a prison sentence, an arrest and detention order made by the Indictment Division [ordonnnance de prise de corps], a warrant of commitment or arrest [mandat de dépôt ou d’arrêt], a warrant for the suspect to be brought before the investigating judge [mandat d’amener] wherever such a warrant is to be followed immediately by a period of interim detention, or an arrest order drawn up in accordance with the law, or without issuing the memorandum of imprisonment required by Article 724.” 27. The relevant case-law on some of the aforementioned Articles is as follows: “Since the second paragraph of Article 201 entitles the Indictment Division to order the release of the accused of its own motion regardless of the circumstances in which the matter was referred to it, the accused must be released if he is being held by virtue of a non-existent order. Such is the case when an order extending a period of pre-trial detention, although not appealed against, was issued out of time.” (Cass. Crim., 4 January 1983, Dalloz 1983, p. 562, note by Royer; JCP 1984. II. 20203, note by Chambon; Bull. crim. no. 3 [;and] Cass. Crim., 10 May 1985: Bull. crim. no. 168) “By Article 214, third paragraph, the Indictment Division must give its ruling within two months of the date of the transfer order, failing which the accused must automatically be released. The requirements of that provision are satisfied by a judgment in which further investigations are ordered within that time-limit.” (Cass. Crim., 30 June 1981: Bull. crim. no. 221) “In that case, it is not necessary to give any decision on pre-trial detention.” (Cass. Crim., 18 June 1985: Bull. crim. no. 232; Cass. Crim., 17 July 1990: Bull. crim. no. 286) “By Article 181, the initial detention order automatically remains in force from the point at which the order to transfer the case is made until the Indictment Division gives its decision …” (Cass. Crim., 4 March 1992: Bull. crim. no. 62) “Whenever the Indictment Division has ruled within the time laid down by Article 214, third paragraph, even if only for the purpose of ordering further investigations, the initial warrant of commitment remains in force until the accused is indicted as prescribed by Article 181, second paragraph.” (Cass. Crim., 10 February 1999: Bull. crim. no. 16)