CASE OF QUINN v. FRANCE
Violation of Art. 5-1;No violation of Art. 5-3 (detention on remand);Not necessary to examine Art. 18;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
N. Valticos;R. Pekkanen
7. Mr Thomas Quinn, who was born in New York in 1937, is an American national and at the material time lived in Paris. On 24 September 1992 the French Government extradited him to Switzerland. 8. Following ninety-three complaints laid by French investors, an investigation was opened in France in 1988. The persons concerned had been approached by brokers established in Switzerland and in Liechtenstein who had sold them at artificially inflated rates shares issued on the American market by sham companies. The sums collected were paid into accounts opened in Switzerland in the name of foreign companies, but the complainants were never able to realise their shares. Criminal proceedings were instituted against eleven persons, including the applicant. They were all foreign nationals. 9. Mr Quinn was arrested on 1 August 1988 in possession of two false Greek passports and was charged on the same day with fraud, offences under the legislation on the issuing of securities and forgery of administrative documents. On the following 29 November the investigating judge added to the initial charges the aggravating circumstance of fraud by a person having solicited the public for a savings scheme. 10. On the day of his arrest Mr Quinn had been remanded in custody at the Santé prison in Paris. On three occasions, 30 November 1988, 23 March and 20 July 1989, the investigating judge extended the detention by four months at a time. He took the view that detention was the sole means of ensuring the appearance for trial of an accused, who was a foreign national, who had been arrested in possession of false passports and who had several residences outside France and a large number of accomplices. 11. Mr Quinn appealed to the Indictment Division of the Paris Court of Appeal against the order of 20 July 1989 extending his detention on remand. After holding a hearing on 2 August 1989, the Indictment Division set aside the contested order by a decision delivered in the applicant’s absence at 9 a.m. on 4 August. It directed that he should be "released forthwith if he [was] not detained on other grounds" and gave the following reasons: "At the present stage in the investigation, which has been conducted with due diligence, and given the evidence against him, detention no longer appears necessary for establishing the truth. In view of the reimbursements which have been, or are in the process of being, effected, it is no longer required on grounds of public order. Finally, the seizures carried out are such as to ensure that the appellant will appear for trial and in addition he provides guarantees as regards his place of residence and his movements." This decision was immediately enforceable and no appeal was lodged against it. 12. The applicant was not released, however. His release was subject to the decision being notified by the public prosecutor responsible for its execution and to completion of the relevant formalities. 13. The applicant appeared before the Paris Criminal Court while in detention with a view to extradition (see paragraphs 16 and 17 below). On 10 July 1991 he was found guilty of fraud to the detriment of ninety-three persons and of organising a campaign to solicit the public in connection with transactions involving foreign securities in France, without prior authorisation. He was sentenced to four years’ imprisonment and fined 300,000 French francs (FRF). The court ordered his detention (see paragraph 30 below). 14. The prosecuting authority and Mr Quinn appealed to the Paris Court of Appeal. In a judgment of 23 April 1992 that court found that the aggravating circumstance of soliciting the public for a savings scheme was not made out and reduced the sentence to four years’ imprisonment, one year of which was suspended. It ordered that he remain in detention (see paragraph 30 below). 15. The applicant, who had been in detention on remand from 1 August 1988 to 4 August 1989 and then for the duration of the court proceedings in the domestic case - a total of approximately one year and ten months -, was extradited to Switzerland on 24 September 1992 after having completed his sentence. 16. On 4 August 1989, towards 5.30 p.m., a Geneva investigating judge sent by fax to the Paris public prosecutor’s office a request for the applicant’s provisional arrest with a view to his extradition. The same request was transmitted through the intermediary of the International Criminal Police Organisation (Interpol) on 5 August and through diplomatic channels on 16 August. The applicant was described as "currently detained in the Santé prison in Paris, and today released on a provisional basis". This document headed "fiche d’accompagnement" (covering note) was marked "very urgent, to be delivered in person to the addressee [a deputy public prosecutor], who is apprised of the matter". It was accompanied by the international warrant issued by the Swiss judge for Mr Quinn’s arrest on charges of professional fraud and forging securities. He was accused of having, with his accomplices, sold shares in American companies to nearly ten thousand investors throughout the world, deceiving them as to the value of the shares and using false identities to pay the sums in question into Swiss bank accounts. The total prejudice was estimated at over ten million dollars. 17. The Paris public prosecutor ordered the applicant’s provisional arrest. Mr Quinn, who was still detained in the Santé prison, was arrested there. He was questioned by the prosecutor at around 8 p.m. and placed in detention with a view to extradition. 18. On 4 October 1989 the Paris Indictment Division - composed differently to the division that had ruled on the applicant’s detention - served on the applicant the instrument on the basis of which he had been arrested. 19. In the course of the extradition proceedings brought against him, Mr Quinn applied three times for his release, relying on each occasion on Article 5 (art. 5) of the Convention. He complained of the circumstances in which he had been arrested. In its three decisions, given on 23 August 1989, 2 November 1989 and 19 December 1990, the Indictment Division dismissed his three applications, finding that the detention had been ordered in conformity with the provisions of the European Convention on Extradition. It justified its refusal to release the applicant on the grounds of the risk of his absconding and the lack of guarantees to ensure his presence in connection with the further proceedings. On the question of the length of his detention, it considered that the proceedings had been "conducted uninterruptedly and without delay". In response to the applicant’s complaint concerning the unlawfulness of the manner in which he had been placed in detention with a view to extradition, it observed that "the complaints in the pleadings on this point [were] a matter for French domestic law and [could not] be examined in extradition proceedings". 20. The applicant lodged three appeals on points of law. In a judgment of 19 December 1989 dismissing one of those appeals, the Court of Cassation stated as follows: "... contrary to the claims of Thomas Quinn, the judges [of the Indictment Division] were not under a duty, in order to justify his continued detention, to refer solely to the provisions of Article 144 of the Code of Criminal Procedure [see paragraph 29 below], inasmuch as in extradition proceedings it is not their task to determine the merits of the charges brought against the person sought." It observed in a judgment delivered on 15 April 1991 dismissing another appeal that the judges were not concerned with "the conditions and rules governing the foreign prosecution", and that "the decision of the Indictment Division of 4 August 1989 which ordered [the applicant’s] release in the proceedings brought against him in France was entirely without force for the purposes of extradition proceedings". 21. On 16 August 1989 the principal public prosecutor interviewed the applicant with a view to formally establishing his identity. 22. In a preliminary decision of 2 November 1989 the Indictment Division sought additional information from the requesting State. The information which it obtained concerning the complainants, the bank accounts and the acts constituting the fraudulent transactions was communicated to the applicant at a hearing held on 17 January 1990. He pleaded that there had been an abuse of procedure on the part of the Swiss State. The Swiss authorities had sought to prevent the French court from exercising its jurisdiction. 23. On 14 March 1990 the Indictment Division of the Paris Court of Appeal ruled in favour of the applicant’s extradition. Expressing its view on the notions of "urgency" and "person sought" within the meaning of the European Convention on Extradition, it stated as follows: "The assessment of the urgency is a matter for that State [Switzerland] and that urgency was justified by the fact that Quinn’s release in the French proceedings had just been ordered; The French authorities cannot be criticised for having warned the Swiss authorities as this conduct is natural and usual in the context of international judicial co-operation." 24. On 24 July 1990 the Court of Cassation dismissed as inadmissible under Article 16 of the Law of 10 March 1927 (see paragraph 28 below) Mr Quinn’s appeal on points of law against the Indictment Division’s opinion. 25. On 24 January 1991 the Prime Minister granted the Swiss authorities’ request for the applicant’s extradition. The order was served on him on the following 19 February. Mr Quinn applied to the Conseil d’Etat for a stay of execution and for review of the order, but his application was dismissed on 31 January 1992, on, inter alia, the following ground: "... the fact that the arrest warrant was issued by a Swiss judge on the day on which the Indictment Division of the Paris Court of Appeal gave its decision on an application for release filed by Mr Quinn, who was facing charges in France, does not establish, contrary to the applicant’s contention, that there was an abuse of procedure." 26. Mr Quinn, who had been in detention with a view to extradition from 4 August 1989 to 10 July 1991 - a period of one year, eleven months and six days - was surrendered to the Swiss authorities on 24 September 1992 (see paragraph 15 above). 27. The European Convention on Extradition which was signed in Paris on 13 December 1957 and which came into force on 11 May 1986 provides as follows: "The Contracting Parties undertake to surrender to each other, subject to the provisions and conditions laid down in this Convention, all persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order." "1. The requested Party may refuse to extradite a person claimed for an offence which is regarded by its law as having been committed in whole or in part in its territory or in a place treated as its territory. ..." "The requested Party may refuse to extradite the persons claimed if the competent authorities of such Party are proceeding against him in respect of the offence or offences for which extradition is requested." "1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law. ... 4. ... The possibility of provisional release at any time is not excluded, but the requested Party shall take any measures which it considers necessary to prevent the escape of the person sought. ..." "... 3. If the [extradition] request is agreed to, the requesting Party shall be informed of the place and date of surrender and of the length of time for which the person claimed was detained with a view to surrender. ..." "1. The requested Party may, after making its decision on the request for extradition, postpone the surrender of the person claimed in order that he may be proceeded against by that Party or, if he has already been convicted, in order that he may serve his sentence in the territory of that Party for an offence other than that for which extradition is requested. 2. The requested Party may, instead of postponing surrender, temporarily surrender the person claimed to the requesting Party in accordance with conditions to be determined by mutual agreement by the Parties." 28. The Law of 10 March 1927 on the extradition of aliens provides, inter alia, as follows: "Where there is no treaty, the conditions and the procedure for and the effects of the extradition shall be determined by the provisions of the present Law. The present Law shall also apply to questions which have not been dealt with by the treaties." "An extradition request shall not be granted: ... 3. Where the serious or less serious offences (crimes ou délits) have been committed in France or in the French colonial possessions; ..." "Where an alien is prosecuted or convicted in France and where the French Government is requested to extradite him in connection with a different offence, he shall not be surrendered until the criminal proceedings have been concluded, and, in the event of his conviction, until the sentence has been executed. However, this provision shall not preclude the sending on a temporary basis of the alien to appear before the courts of the requesting State, subject to the express condition that he be returned as soon as the foreign courts have given judgment. ..." "[If the person concerned does not consent to being surrendered to the authorities of the requesting State], the Indictment Division, in a ruling against which no appeal lies, shall give its reasoned opinion on the extradition request. ..." "If the Indictment Division’s reasoned opinion is opposed to granting the extradition request, that opinion shall be final and the request may not be granted." "If the division is not opposed, the Minister for Justice shall submit, where appropriate, for the signature of the President of the Republic, an order authorising the extradition. If, within a period of one month of the extradition order being served, the authorities of the requesting State have not taken charge of the person to be extradited, he shall be released and his extradition may not be sought on the same grounds." 29. Under Article 144 of the Code of Criminal Procedure: "... detention on remand may be ordered or continued: 1. Where the detention on remand of the accused is the sole means of preserving evidence or material clues or of preventing either pressure being brought to bear on the witnesses or the victims, or collusion between the accused and accomplices; 2. Where this detention is necessary to preserve public order from the prejudice caused by the offence or to protect the accused, to put an end to the offence or to prevent its repetition or to ensure that the accused remains at the disposal of the judicial authorities. ..." Article 145-1 of the Code of Criminal Procedure reads as follows: "In cases involving `less serious’ criminal offences (matière correctionnelle) detention on remand may not exceed four months. However, at the end of this period, the investigating judge may extend the detention by an order giving reasons as indicated in the first paragraph of Article 145. No extension may be ordered for a period exceeding four months. Where the person charged has not previously been sentenced for a serious or less serious offence (crime ou délit) to a non-suspended term of imprisonment exceeding one year and where the sentence he risks does not exceed five years, the extension of detention provided for in the preceding paragraph may be ordered only once and for a period not exceeding two months. In other cases, the person charged may not be kept in detention for longer than one year. However, in exceptional circumstances, the investigating judge may decide at the end of that period to extend the detention, for a period not exceeding four months, by a reasoned order made in accordance with the provisions of the first and fifth paragraphs of Article 145, it being possible to renew such an order under the same procedure. Nevertheless the person charged may not be kept in detention for more than two years where the sentence he risks does not exceed five years. ..." 30. As the execution of judgments is stayed during the periods prescribed for lodging appeals, the courts may order at the trial or appeal hearing that the convicted person remain in detention on remand (Articles 464-1, 465 and 569 of the Code of Criminal Procedure). This period of detention is deducted in full from the sentence imposed (Article 24 of the Code of Criminal Procedure). 31. A person detained following a request for extradition from a foreign government is subject to the same rules as a remand prisoner (Article D 507 of the Code of Criminal Procedure). 32. The decision of the court which rules on an application for release is immediately enforceable (Article 148-2 of the Code of Criminal Procedure, second sub-paragraph); responsibility for its execution lies with the principal public prosecutor (Article 207 of the Code of Criminal Procedure). 33. Prior to his release, a remand prisoner facing charges must make a statement giving his address (Article 148-3 of the Code of Criminal Procedure), before the investigating judge if the latter has had him taken out of prison or otherwise before the governor of the prison. In so far as the governor is required to obtain a declaration of the detainee’s address before releasing him, the investigating judge must inform him, when transmitting the order for his release, whether the accused has already given an address in his presence. On release, each released detainee is issued with a release order (Article D 288 of the Code of Criminal Procedure). Where several detainees are due for release on the same day, precautions are to be taken to ensure that they do not meet each other, but the application of this rule must not have the effect of delaying beyond midday their release on the day on which they are to be released (Article D 289 of the Code of Criminal Procedure).