CASE OF SELMOUNI v. FRANCE
Preliminary objection rejected (non-exhaustion);Violation of Art. 3;Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
Luzius Wildhaber
7. Mr Selmouni, a Netherlands and Moroccan national, was born in 1942 and is currently in prison in Montmédy (France). 8. On 20 November 1991 the police arrested Géray Tarek, Dominique Keledjian and Mr Keledjian’s girlfriend in connection with a drug-trafficking investigation, on the instructions of Mr de Larosière, an investigating judge at the Bobigny tribunal de grande instance. Dominique Keledjian made a voluntary statement, telling the police that he had bought his heroin in Amsterdam from a certain “Gaby”, who had helped him conceal it in order to bring it into France over a number of trips. He gave the police a telephone number in Amsterdam which enabled them to identify the applicant. 9. On 25 November 1991 Mr Selmouni was arrested following surveillance of a hotel in Paris. After being identified by Dominique Keledjian and his girlfriend, Mr Selmouni explained that he had had business dealings with Dominique Keledjian in the clothes trade. He denied any involvement in drug trafficking. 10. Mr Selmouni was held in police custody from 8.30 p.m. on 25 November 1991 until 7 p.m. on 28 November 1991. He was questioned by police officers from the Seine-Saint-Denis Criminal Investigation Department (“SDPJ 93”) in Bobigny. 11. Mr Selmouni was first questioned from 12.40 a.m. to 1.30 a.m. on 26 November 1991 by the police officers against whom he later made a complaint. Having been questioned and taken back to the court cells, Mr Selmouni had a dizzy spell. The court cell officers took him to the casualty department at Jean Verdier Hospital in Bondy at 3.15 a.m. The medical observations made by the casualty department read as follows: “Date of examination: 26 November 1991. 3.15 a.m. Attends casualty complaining of assault. On examination, several superficial bruises and injuries found on both arms. Bruises on outer left side of face. Bruise on left hypochondrium. Marks of bruising on top of head. Chest pains increase with deep respiration. Neurological examination shows no abnormalities.” 12. On 26 November 1991 the investigating judge extended police custody by forty-eight hours. Mr Selmouni was questioned from 4.40 p.m. to 5.10 p.m., at 7 p.m., from 8 p.m. to 8.15 p.m. and from 10.25 p.m. to 11.30 p.m. On the same day Mr Selmouni was examined by a Dr Aoustin, who made the following observations: “Bruising to the left eyelid, left arm, lower back. Scalp painful.” 13. On 27 November 1991 Mr Selmouni was questioned from 11 a.m. to 11.40 a.m. On examining him again, Dr Aoustin made the following notes: “Substantial bruising to the left eyelid, left arm, lower back. Bruising to the scalp. Ate nothing yesterday … Complaints forwarded.” 14. After being questioned from 9.30 a.m. to 10.15 a.m. on 28 November 1991, Mr Selmouni was again examined by Dr Aoustin, who noted on his medical certificate: “Bruising to the left eyelid, left arm, lower back. Bruising to the scalp. No current treatment.” 15. At 11.30 a.m. on 29 November 1991 the applicant was examined by Dr Edery, a general practitioner. He drew up a certificate, at Mr Selmouni’s request, to the effect that Mr Selmouni claimed to have been assaulted. The certificate stated: “Headaches, bruises under left and right eyes, on left and right arms, back, thorax, left and right thighs and left knee. All areas painful.” 16. On the same day the applicant was brought before the investigating judge, who charged him with offences against the dangerous drugs legislation and remanded him in custody. On Mr Selmouni’s first appearance before the investigating judge, the latter, on his own initiative, appointed Dr Garnier, an expert in forensic medicine on the Paris Court of Appeal’s panel, to examine Mr Selmouni, “who claim[ed] to have been illtreated while in police custody”, and another person, Mr Abdelmajid Madi, arrested on 26 November 1991 and charged with the same offences. 17. On 2 December 1991 the applicant was examined by Dr Nicot from the medical department of Fleury-Mérogis Prison. In a medical certificate drawn up at Mr Selmouni’s request the doctor made the following observations: “… extensive bruising to the trunk and thighs and substantial bruising round the eyes. Presents conjunctival bruises. Says sight impaired in left eye.” 18. On 7 December 1991 Dr Garnier, the expert appointed by the investigating judge, examined the applicant at the prison. Mr Selmouni made the following statement to the doctor: “I was stopped in the street on 25 November 1991 at about 9 a.m. There were no problems at that stage. I was taken to the hotel where I was living. One of the six plain-clothes policemen then hit me in the area of my left temple. I was then taken to Bobigny police station. At about 10 a.m. I was taken up to the first floor, where about eight people started hitting me. I had to kneel down. One police officer pulled me up by my hair. Another policeman hit me repeatedly on the head with an instrument resembling a baseball bat. Another one kept kicking and punching me in the back. The interrogation continued non-stop for about an hour. In the night I asked to be examined. I was taken to hospital, where I had head and chest X-rays. I was hit again at about 9 p.m. the following day during a further interrogation and this went on until 2 a.m. When I arrived at Fleury, I underwent a medical examination.” 19. The doctor noted in his report: – “sub-orbital haematoma extending 2 cm below the left lower eyelid, purplish, almost completely healed, – thin linear scar, approximately 1 cm long, continuing the line of the left eyebrow, – one right sub-orbital haematoma, almost completely healed, – multiple skin abrasions (six of which are large), almost completely healed, on the left arm, – two 5 cm linear skin abrasions – possibly scratches – on the right arm, – 0.5 cm skin lesion on the back of the right hand, – haematoma on the back of the thorax, over the right shoulder blade, – one haematoma on the right side, – severe (10 cm by 5 cm) haematoma on the left side of the thorax, – three haematomas on the left side, – severe (5 cm by 3 cm) haematoma on the front of the thorax, purplish, in the epigastric region, – haematoma in the right prehepatic region, – haematoma on the left of the ribcage 5 cm below the nipple, – 5 cm by 3 cm haematoma on the left side on the axillary line, – haematoma in the right subclavian region, – haematoma on the right buttock, – 10 cm by 5 cm haematoma on the left buttock, – 5 cm by 1 cm linear haematoma on the outer front part of the left thigh, – skin abrasion corresponding to a wound, now healing, on the front of the right ankle, – swelling on the back of the right foot and a skin abrasion on the back of the foot, – five superficial wounds, now healing, on the lower front part of the right leg, – skin abrasions and bruised swelling on the back of the first two metacarpals of the left hand. The patient states that on his arrival at Fleury he was treated with skin cream and given painkillers. No injuries to the scalp or left eyeball …” 20. The conclusion of the report is as follows: “CONCLUSION Mr Selmouni states that he was subjected to ill-treatment while in policy custody. He presents lesions of traumatic origin on his skin that were sustained at a time which corresponds to the period of police custody. These injuries are healing well.” 21. That report was attached to the investigation file opened in respect of the applicant. On 11 December 1991 the investigating judge sent it to the public prosecutor’s office. 22. In an order of 8 September 1992 the investigating judge committed the applicant for trial at the Criminal Court and ordered him to be kept in detention on remand. 23. On 17 February 1992 the public prosecutor’s office at the Bobigny tribunal de grande instance instructed the National Police Inspectorate to question the police officers concerned. 24. When questioned at Fleury-Mérogis Prison by an officer of the National Police Inspectorate on 1 December 1992, the applicant confirmed his earlier statement as follows: “… At about 8.30 p.m. on 25 November 1991 I was arrested in the vicinity of my hotel, the Terminus Nord, near the Gare du Nord in Paris by two or three plain-clothes policemen. They pushed me against a wall while pressing the barrels of two guns against my neck. I offered no resistance to my arrest and did not struggle. You remind me that during questioning on 27 November 1992 I admitted that I had attempted to escape arrest. I dispute that. First of all, I maintain that I did not make such a statement to the police officer who questioned me and, moreover, I signed the records of interview without having read them. The policeman told me on my release from police custody that he had got me to sign that I had resisted arrest and that they were covered. I was alone when I was arrested and immediately afterwards I was taken to my hotel room, which was searched in my presence. Two other policemen were already there. While they were searching my room, the youngest police officer of the group punched me on the left temple. When they had finished searching my room I was taken to the Drugs Squad station in Bobigny and to an office on the first or second floor. After I had been subjected to a body search, during which everything in my possession was taken, my interrogation by five police officers began. One of them, who appeared to be in charge, made me kneel on the floor and began pulling my hair while another one hit me in the ribs with a stick resembling a baseball bat. He then kept tapping me on the head with the bat. The three other police officers were also actively involved, punching me and some of them standing on my feet and crushing them. I seem to recall arriving at Bobigny police station at about 10 p.m. The treatment I have described continued until 1 a.m. Following that first interrogation I was handed over to uniformed policemen on the ground floor of the building in which I was detained. As my ribs and head were hurting from the blows I had received, I informed these policemen and was taken in the night to a hospital in the area, but cannot say which one. There I underwent several examinations, including X-rays, and was later taken to a police station, but not the one to which I had first been taken. The uniformed police officers treated me decently. The following morning, before being questioned a second time, I was examined on the premises of the Drugs Squad by a doctor, who was able to see the marks on my body caused by the policemen’s brutality. On 26 November 1992 I was questioned again by several police officers – three or four – at some point in the day. I believe it was at about 10 a.m. On that occasion they pulled my hair, punched me and hit me with a stick. In the evening of the same day, when there were fewer staff on the first floor, I was questioned again by six police officers, who were particularly brutal to me. I was punched, and beaten with a truncheon and a baseball bat. They all carried on assaulting me until 1 a.m. I think that this session of ill-treatment had begun at about 7 p.m. At one point they made me go out into a long office corridor where the officer I presumed was in charge grabbed me by the hair and made me run along the corridor while the others positioned themselves on either side, tripping me up. They then took me into an office where a woman was sitting and made me kneel down. They pulled my hair, saying to this woman ‘Look, you’re going to hear somebody sing’. I remained there for about ten minutes. I cannot describe this woman to you, but she looked young. I was then taken back out into the corridor, where one of the police officers took out his penis and came up to me saying ‘Here, suck this’; at that point I was on my knees. I refused, keeping my mouth closed because he had brought his penis up to my lips. When I refused, that officer urinated over me at the suggestion of one of his colleagues. After that, I was taken to an office and threatened with burns if I did not talk. When I refused, they lit two blowlamps which were connected to two small blue gas-bottles. They made me sit down and placed the blowlamps about one metre away from my feet, on which I no longer had shoes. At the same time they were hitting me. Following that ill-treatment, they brandished a syringe, threatening to inject me with it. When I saw that, I ripped open my shirt-sleeve, saying ‘Go on, you won’t dare’; as I had predicted, they did not carry out their threat. My reaction prompted a fresh outburst of violence from the policemen and I was illtreated again. The police officers left me in peace for about fifteen minutes, then one of them said ‘You Arabs enjoy being screwed’. They took hold of me, made me undress and one of them inserted a small black truncheon into my anus. NB. When Mr Selmouni relates that scene, he starts crying. I am aware that what I have just told you is serious, but it is the whole truth, I really did suffer that ill-treatment. After the sexual assault, I was put into a cell again. The next day I was examined by a doctor, who was able to observe my condition. I had informed the doctor that the policemen had been assaulting me and I had even asked him to tell them to stop torturing me. The violence I have just described was committed during the nights of 25 to 26 and 26 to 27 November 1991. Thereafter, until I was brought before the investigating judge, I was occasionally punched. Before bringing me before the investigating judge, the policemen were very kind, even going so far as to offer me coffee. When I signed the papers concerning my belongings, I noticed that 2,800 guilders and a Dupont lighter had disappeared. I informed a policeman about this – the one I thought was in charge – who replied ‘Shit, again’, and the matter was left at that. The lighter bears the initials A.Z. I can identify the six policemen who hit me. I can also describe the part played by each one. The officer in charge is slightly balding. The one who showed me his penis and then sodomised me with a truncheon is of medium height, fairly thickset, aged 30 to 35, and fair-haired. As soon as I was brought before the investigating judge, I told him that I had been assaulted, and a few days later I was examined at the prison. However, on the actual day I was brought before the investigating judge I had seen a doctor at the Bobigny law courts. I have had a lawyer for one month and have informed him of the manner in which I was treated while in police custody. When I arrived at the prison, the marks left by the assault were all over my body. I now have trouble with my eyes. I am lodging a complaint against the policemen.” 25. The record of the interview was sent to the Bobigny public prosecutor on 2 December 1992 as part of the proceedings numbered B.92.016.5118/4. 26. In a judgment of 7 December 1992 the Thirteenth Division of the Bobigny Criminal Court sentenced the applicant to fifteen years’ imprisonment and permanent exclusion from French territory and, as to the civil action by the customs authorities, ordered him to pay, jointly and severally with his co-accused, an aggregate sum of twenty-four million French francs. In a judgment of 16 September 1993 the Paris Court of Appeal reduced the prison sentence to thirteen years and upheld the remainder of the judgment. On 27 June 1994 the Court of Cassation dismissed the applicant’s appeal. 27. Mr Selmouni attended Hôtel-Dieu Hospital for treatment at regular intervals during his detention. 28. On 1 February 1993 the applicant lodged a criminal complaint together with an application to join the criminal proceedings as a civil party with the senior investigating judge at the Bobigny tribunal de grande instance for “assault occasioning actual bodily harm resulting in total unfitness for work for more than eight days; assault and wounding with a weapon (namely a baseball bat); indecent assault; assault occasioning permanent disability (namely the loss of an eye); and rape aided and abetted by two or more accomplices, all of which offences were committed between 25 and 29 November 1991 by police officers in the performance of their duties”. 29. On 22 February 1993, in the proceedings numbered B.92.016.5118/4, the Bobigny public prosecutor requested that an investigation be opened into the complaint lodged by Mr Selmouni and a similar complaint lodged by a co-defendant, Mr Madi, concerning offences committed by a person or persons unknown of assault and wounding, with a weapon, of a defenceless person and indecent assault. The complaint lodged by the applicant on 1 February 1993 was registered on 15 March 1993. These new proceedings were given the reference number B.93.074.6000/9. 30. On 27 April 1993 Mrs Mary, the investigating judge at the Bobigny tribunal de grande instance to whom the case had been allocated, issued formal instructions to the Director of the National Police Inspectorate to take all necessary steps to establish the truth. She set 15 June 1993 as the date for filing his reports. 31. On 9 June 1993 Dr Garnier re-examined Mr Selmouni, at Mrs Mary’s request. In his report, which he filed on 21 June 1993, he made the following observations: “When I first examined Mr Selmouni, he stated that he had been assaulted while in police custody. He has told me today that he did not mention the sexual assault on that occasion because he felt ashamed of it. An examination of the anal sphincter does not reveal any lesion such as to corroborate or invalidate the patient’s statements, mainly owing to the amount of time which has elapsed since the alleged acts. The somatic lesions recorded in the previous medical certificate are healing well with no complications. As regards the alleged sexual assault, in the absence of any functional repercussion or visible injury, no sick-leave on grounds of total unfitness for work [‘ITTP’] is necessary as a direct result of the alleged acts. TOTAL UNFITNESS FOR WORK The lesions recorded in the first medical certificate and observed when I prepared my first expert report are traumatic lesions with no serious features (haematomas and bruises) and necessitate an ITTP of 5 days. CONCLUSION Mr Selmouni states that he was sexually assaulted and beaten while in police custody. The traumatic lesions necessitated an ITTP of 5 days. The patient states that his sight in his left eye is impaired. An examination by an eye specialist is necessary if a causal link with the alleged acts is to be established. As regards the sexual assault, in the absence of any visible injury and any functional repercussions, an ITTP is not necessary.” 32. In an order of 15 June 1993 the investigating judge decided to join the two complaints relating to the same offences under the single reference B.92.016.5118/4. 33. She interviewed the applicant on 14 May 1993, instructed an expert on 9 June 1993 and served the parties with the expert’s medical report on 15 September 1993. 34. On 7 July 1993 the applicant sent the investigating judge a copy of the medical certificates of 29 November and 2 December 1991 and reiterated the terms of his complaint. 35. In a letter of 3 September 1993 to the President of the Tenth Division of the Paris Court of Appeal, which was to hear the applicant’s appeal against his conviction for offences against the dangerous drugs legislation, the applicant said that he had been raped with the baseball bat and added that a police officer had urinated over him. The applicant stated that, before sending that letter, he had also informed the President of the thirteenth division of the Bobigny Criminal Court of the ill-treatment inflicted on him while he was in police custody. 36. In a formal instruction of 8 October 1993 the investigating judge reiterated her request of 27 April 1993 as the 15 June 1993 time-limit for sending in the police inspectorate’s reports had not been complied with. She also ordered Mr Selmouni’s medical files to be seized at Fresnes Prison Hospital, Fleury-Mérogis Prison and Hôtel-Dieu Hospital. 37. The investigating judge interviewed the civil parties again on 6 December 1993, after receiving on 2 December 1993 the evidence taken by the police inspectorate on her instructions. On 26 January 1994 a lawyer was officially appointed to represent the applicant under the legal aid scheme. In letters of 23 June and 27 October 1994 the lawyer in question told the applicant that she was having difficulties obtaining a visiting permit. 38. The civil parties were interviewed again on 10 February 1994, on which date an identity parade was organised in order to identify the police officers against whom the allegations had been made. Mr Selmouni picked out four police officers from the ten who took part in the identity parade. They were Mr Jean-Bernard Hervé, Mr Christophe Staebler, Mr Bruno Gautier and Mr Patrice Hurault. 39. With a view to charging the police officers identified by the civil parties, the investigating judge sent the case file to the public prosecutor’s office on 1 March 1994. 40. The Bobigny public prosecutor referred the case to the Paris Principal Public Prosecutor who, in turn, referred it to the Court of Cassation. 41. In a judgment of 27 April 1994 the Court of Cassation decided to remove the case from the Bobigny investigating judge and transfer it to a judge of the Versailles tribunal de grande instance, in the interests of the proper administration of justice. On 21 June 1994 the public prosecutor at the Versailles tribunal de grande instance reopened the investigation, under the reference V.94.172.0178/3, into offences of “assault by public servants occasioning total unfitness for work for more than eight days and sexual assault by several assailants or accomplices, against any persons identified as a result of the investigation”. 42. On 22 June 1994 the case was allocated to Mrs Françoise Carlier-Prigent, the Vice-President of the Versailles tribunal de grande instance in overall charge of judicial investigations. 43. On 8 August 1994 the investigating judge requested that both of Mr Selmouni’s medical files that had been placed under seal by the National Police Inspectorate be sent to her. The sealed documents were sent to her on 12 April 1995. 44. On 19 September 1995 Mr Selmouni underwent an operation on his left eye at Hôtel-Dieu Hospital. 45. In an order of 22 September 1995 the investigating judge appointed an eye specialist, Dr Biard, to examine Mr Selmouni. 46. On 5 January 1996 the medical expert was granted an extension of time in which to file his report. He filed it on 18 January 1996. In it he made the following findings: “1. Mr Selmouni’s eyesight has deteriorated since he was operated on in September 1995. It cannot be said with certainty that it really deteriorated between 25 November 1991 and the end of September 1995. 2. The assault of which he complains, namely the blows to the left periorbital region of his face, could have caused eye injuries, but apart from subjective symptoms of metamorphopsia, or even reduced vision, and of an isolated problem with the epiretinal membrane, no mark on the eye, in particular the anterior chamber, has ever been found, nor has any sign of haemorrhaging in the retina occurring contemporaneously with the blows complained of and enabling a link to be established between them. However, signs of degeneration were found in relation to a constitutional disorder (short-sightedness in both eyes).” 47. On 6 February 1996 the medical report was served on Mr Selmouni, who also gave evidence. He maintained his allegations against the four police officers he had named. On 7 March 1996 evidence was also heard from the other civil party, Mr Madi. Mr Madi named a fifth police officer, Mr Alexis Leclercq. 48. In a letter of 2 May 1996 the investigating judge asked the Director of the Criminal Investigation Department (“CID”) for the names and addresses of the police officers against whom the complaints had been filed. He replied on 23 May 1996. 49. On 21 October 1996 the investigating judge officially informed the five police officers implicated by the applicant that they were being placed under investigation. 50. The five police officers against whom Mr Selmouni and Mr Madi had lodged their complaints, namely Mr Hervé, Mr Staebler, Mr Gautier, Mr Leclercq and Mr Hurault, were questioned on their first appearance on 10, 24 and 31 January, 28 February and 7 March 1997. They were placed under investigation for assault by public servants occasioning total unfitness for work for more than eight days. Mr Hervé, Mr Staebler, Mr Gautier and Mr Hurault were also placed under investigation for sexual assault committed by a number of assailants or accomplices. 51. On 24 April 1998, in view of the denials by the police officers, who maintained that a “struggle” had ensued when Mr Selmouni was arrested, the investigating judge appointed Dr Garnier as expert again, instructing him to examine all Mr Selmouni’s medical files and certificates and give his opinion as to whether the injuries found could have been caused in a “struggle” when he was arrested at approximately 8.30 p.m. on 25 November 1991 or whether they supported the applicant’s allegations. 52. On the same day the applicant requested that a number of investigative measures be carried out, including a further confrontation between witnesses and further medical reports in order to determine the damage he had suffered, and an inspection by the judge of the premises on which he had been held in police custody. In an order of 7 May 1998 the investigating judge dismissed the requests, on the ground that some of them had been partly satisfied. 53. On 4 June 1998 a confrontation was held between the applicant and the four police officers. He described the part each of them had played while he had been in their custody. 54. Dr Garnier’s report was filed on 3 July 1998. The expert concluded his report in the following terms: “An examination of the medical file shows that doctors found a progression of injury marks on the patient’s body during the period in police custody. A number of them could certainly have been caused during a ‘struggle’ when the patient was arrested at approximately 8.30 p.m. on 25 November 1991, as described by the CID officers in question. The injuries, particularly those on the lower limbs and buttocks, which were not seen on the first examination, would certainly have been sustained after that arrest and support the patient’s statements. As regards the acts of sodomy described by the patient, the negative result of the test carried out on 9 June 1993, that is one and a half years after the initial facts, neither disproves nor proves that they occurred.” 55. On 25 August 1998 the investigating judge served notice on Mr Selmouni that the investigation was complete. The investigation file was sent to the public prosecutor’s office on 15 September 1998. 56. On 19 October 1998 the public prosecutor submitted his written statement of how he wished the investigating judge to proceed with the case. He submitted, inter alia: “ … the denials by the police officers concerned do not stand up to examination any more than does their reference to a ‘struggle’ when effecting the arrest or to forceful resistance during questioning. The absence of any variation or inconsistency in the statements made by Ahmed Selmouni and Abdelmajid Madi justifies taking them into consideration. They are, moreover, corroborated by medical findings and therefore amount to sufficient evidence against the five persons in question for the allegations to be examined by the trial court …” 57. In an order of 21 October 1998 the investigating judge committed the five police officers in question for trial at the Versailles Criminal Court. In respect of Mr Selmouni’s allegations, the judge committed the four police officers concerned for trial at that court on charges of assault occasioning total unfitness for work for less than eight days and indecent assault committed collectively and with violence and coercion. 58. The trial was held at the Versailles Criminal Court on 5 February 1999. The applicant filed pleadings in support of an objection that the court had no jurisdiction to try the case and that it should be transferred to the Assize Court. He submitted that the sexual assault had in fact been rape; that he had been the victim of assault occasioning permanent disability, namely loss of visual acuity, committed by public servants; and, lastly, that the illtreatment he had suffered should be classified as acts of torture inflicted before or during the commission of a crime. The court joined that objection to the merits. At the end of the trial the public prosecutor requested that Mr Hervé be sentenced to four years’ imprisonment and Mr Staebler, Mr Hurault and Mr Gautier to three years’ imprisonment. The Criminal Court reserved judgment until 25 March 1999. 59. In a judgment of 25 March 1999 the Versailles Criminal Court dismissed the objection to jurisdiction raised by Mr Selmouni, on the following grounds in particular: (a) as to classification of the sex offence as rape: “ … The Court must, however, conclude that neither the medical certificates nor the expert reports support the allegation of anal penetration. Furthermore, Selmouni was unable to identify the police officer who had allegedly raped him. Accordingly, the offence cannot be classified as rape.” (b) as to classification of the assault as assault occasioning permanent disability: “ … The Court observes that the expert report prepared by Dr Biard does not allow a causal link to be established between Mr Selmouni’s loss of visual acuity and the blows he received. This point of his objection therefore cannot be allowed.” (c) as to classification of the ill-treatment as acts of torture inflicted before or during the commission of a crime: “Apart from the fact that those acts were not so classified in the former Criminal Code applicable at the material time, in the instant case the acts of violence inflicted on Ahmed Selmouni which he alleges should be classified as acts of torture or barbarism were not inflicted before or during the commission of a crime. The Court therefore considers that the acts in question cannot be classified as a crime …” 60. In determining whether or not the police officers were guilty, the Criminal Court noted that “two completely contradictory arguments [had been] submitted to it” and decided to examine “in turn” “a number of explanations” given by the police officers. Assuming that “it [had been] established … that [the applicant’s] injuries [had been] caused during – or within a very short time before or after – police custody”, the court considered that the attempts made by the civil parties to resist arrest did not suffice to explain the extent of the injuries found; that the “inconsistencies”, if any, in the civil parties’ statements were not decisive and that, in general, “the civil parties had been consistent in their account of events and the timing of them”; that even where there is strong evidence, “any police officer knows well that a confession is preferable and very difficult for a defendant to contest later”; and that “there [was] ample evidence to disprove the allegation that the civil parties [had] conferred when filing their complaints against the police officers”. 61. The Versailles Criminal Court found that “the evidence gathered during the investigation and produced at the trial show[ed] that events [had] indeed occur[red] in the manner described by the victims” and convicted the police officers of the offences charged. The court considered itself bound to “apply the criminal law in a way that [would] serve as an example to others” and sentenced Mr Hurault, Mr Gautier and Mr Staebler to three years’ imprisonment. With regard to the fourth police officer, the court held: “ … in his capacity as Detective Chief Inspector in charge of the group of police officers, Bernard Hervé was responsible for the methods used to conduct the investigation under his control and direction. In addition, he had been directly involved in the assault since he had pulled the civil parties’ hair. The civil parties had unequivocally identified him as the officer in charge. The Court therefore deems it necessary to punish Bernard Hervé more severely for his actions and sentences him to four years’ imprisonment. As Mr Hervé is still in a position of responsibility, it is necessary, as a matter of public policy, that sentence be executed immediately. The Court issues a warrant for Bernard Hervé’s arrest.” 62. The Versailles Criminal Court declared admissible Mr Selmouni’s application to join the proceedings as a civil party. It noted that he had not quantified his claims for damages and that he had reserved the right to apply to the civil courts. 63. The police officers appealed. 64. In a judgment of 8 April 1999 the Versailles Court of Appeal dismissed an application for release made by Mr Hervé, on the following grounds: “… the offences in question, because of their exceptionally serious nature having regard to the status of senior police officer [officier de police judiciaire], responsible for enforcing the laws of the Republic, possessed by the accused, who was convicted at first instance, have resulted in serious and continuing prejudice to public order …” 65. In a judgment of 1 July 1999, following hearings on 20 and 21 May 1999, after which Mr Hervé was released, the Versailles Court of Appeal acquitted the policemen for lack of evidence on the charge of indecent assault, but held them to be guilty of “assault and wounding with or under the threat of the use of a weapon, occasioning total unfitness for work for less than eight days in the case of Selmouni and more than eight days in the case of Madi, by police officers in the course of their duty and without legitimate reason”. It sentenced Mr Hervé to eighteen months’ imprisonment, of which fifteen months were suspended, Mr Gautier and Mr Staebler to fifteen months’ imprisonment suspended and Mr Hurault to twelve months’ imprisonment suspended. The Court of Appeal gave, inter alia, the following reasons for its decision: “As to guilt As to the assaults In absolute terms the word of a policeman, a fortiori that of a senior one [officier de police judiciaire] is more credible than that of a drug trafficker. That premiss, however, is weakened, and even made unsound, where statements by offenders are supported by external evidence such as medical findings. It is put even more in doubt where the explanations provided by the policemen vary significantly during the course of the proceedings; and the presumption in favour of the police is destroyed if it is shown, as in the instant case, that the police reports do not reflect the truth. As to the medical findings The accusations made by the civil parties are supported by unequivocal medical findings. In the first place, as regards Selmouni, the expert Professor Garnier noted in his report of 5 May 1998 that all the doctors who had examined him while he was in police custody had found lesions of traumatic origin on the left arm, in the left orbital region, on the scalp and on the back. On 29 November 1991 further lesions were seen on the lower limbs. He added that during his examination on 7 December 1991 he had again found lesions that had been described earlier and that he found others on the buttocks and on the right ankle. The extent of the injuries on Selmouni’s person increased as the uninterrupted police custody continued. The bruising to the left eyelid, the thin linear scar one centimetre long continuing the line of the left eyebrow, the left and right sub-orbital haematomas found on 29 November 1991 by Dr Edery, and then described on 2 December 1991 by Dr Nicot as being ‘round the eyes’, are consistent with the punching mentioned by Selmouni. The various haematomas found on the thorax, the left and right sides and the abdomen are consistent with the punching and kicking in his statement of 7 December 1991. The pain in the scalp and the headaches mentioned by Drs Aoustin and Edery are likewise of a kind to support Selmouni’s statements, according to which his hair was pulled and he was repeatedly tapped on the head with an instrument which could have been a baseball bat. The haematomas found on the buttocks and the thighs could only have come from blows from a blunt instrument. Similarly, the lesions apparent on the legs, ankles and feet are consistent with the blows or crushing that Selmouni complained of. It follows from the foregoing that the objective injuries, as recorded in successive examinations, match the blows described by Selmouni. As regards Madi, the medical certificates and the expert medical opinions attest to the reality and intensity of the blows he sustained. Further, as set out by the expert, the time that elapsed between the appearance of the objective injuries and the events in issue strongly suggests repeated small injuries. The scalp abrasions are absolutely consistent with his statement that on numerous occasions he was repeatedly struck on the head with a blunt instrument. The rectangular shape of the large haematoma on the right thigh and of the three haematomas on the left thigh corresponds exactly to blows struck with a blunt instrument, as described by the complainant. As to the accounts given by the defendants The defendants’ explanations of how the injuries found came about totally lack credibility. Moreover, on these points as on others, their explanations varied. JeanBernard Hervé, for instance, initially stated that he had acted as a reinforcement to arrest Selmouni (D57) but subsequently said that he was not in the street where the arrest took place but inside the hotel. The defendants maintain that the accusations against them are the result of orchestrated, concerted action. It should be noted at this point that throughout the seven years of inquiries and judicial investigation no evidence was found to substantiate that allegation. The complainants’ interests differed appreciably. The successive descriptions of the ill-treatment they alleged that they had suffered do not disclose any connivance, and it should be pointed out that Selmouni himself was hardly ever assisted by a lawyer in the proceedings concerning drug trafficking. It is not without relevance to note that Madi and Selmouni, who had never been in police custody before, could not have made use of previous experience of it to fabricate a completely false story. The mere fact of Selmouni’s arrest near his hotel, even if it is assumed to have entailed something of a struggle, cannot explain either the seriousness of the injuries or their gradual onset as confirmed by the photographs in the file, seeing that, immediately afterwards, the policemen concerned did not record any suspicious signs either on their own persons or on that of Selmouni, signs that would have warranted a thorough medical examination, which would have been in their own interest. As regards Madi, the policemen’s account, according to which he had deliberately banged his head against a wall and a cupboard, is not consistent with the findings of the medical examinations. The expert noted that in this type of occurrence it is normal to find, at the time of the events, unequivocal injuries and even bleeding wounds, which was not the case here. Taken as a whole, these factors persuade the Court that the alleged resistance to arrest was invented by the accused to justify the seriousness and location of the haematomas and the lesions found on the detainee. As to the reliability of the police reports The policemen from SDPJ 93, in particular Jean-Bernard Hervé, admitted in court that several reports drawn up during the detention of Selmouni and Madi in police custody contained inaccurate statements both as to times and as to the identity of those who had written them. No persuasive logical explanation of this was given to the Court. Hurault, for example, drew up a report (D114) on the search which he made at Gonesse from 5.30 p.m. to 6.55 p.m. on 26 November, and ‘recorded’ at 6.45 p.m. – that is to say at the same time – in another report (D158) that Madi had resisted arrest, and also told the Court that he had intervened to calm him. The complete unreliability of the documents drawn up by the investigators is extremely serious in that the entire functioning of the criminal justice system rests on the reliance that may be placed on the reports of senior police officers and their assistants [officiers et agents de police judiciaire]. In view of all the foregoing, the brutality of which the defendants are accused is patent and the trial court rightly held that during the proceedings they had done nothing but conceal the truth about their behaviour. … As to the sentence The offences of which the defendants are guilty are exceptionally serious ones, and that precludes their benefiting from the provisions of the amnesty of 3 August 1995. They must be regarded as instances of particularly degrading treatment. Having been committed by senior officials responsible for enforcing the laws of the Republic, they must be punished firmly as such conduct cannot be justified, irrespective of the personality of the offenders in their charge and the degree of their corruption and dangerousness. The seriousness of the offences, however, cannot be compared with what it would have been if the sexual assaults had been made out against the defendants. Nor do the offences appear to have been the result of a concerted plan. In view of the part played by each, the absence of any previous criminal record and the administrative files on the defendants, the Court considers that it must accordingly reduce the length of the prison sentences as indicated in the operative provisions of the judgment and leave it to the discretion of the defendants’ superiors to determine what disciplinary consequences are necessary in the case, the prison sentences being suspended, only in part as regards Hervé, whose responsibility appears greater, regard being had to his being the officer in charge. ...”