CASE OF BOZANO v. FRANCE
Preliminary objection rejected (incompatibility);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 5-1;Not necessary to examine Art. 18+5-1 and P4-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - claim partially rejected;Just satisfaction partially reserved
C. Russo
11. The applicant, an Italian national born in 1945, is at present in custody in Porto Azzurro Prison on the island of Elba (Italy). 12. He was arrested by the Italian police on 9 May 1971, released on 12 May and arrested again on 20 May on a charge of having abducted and murdered a 13-year-old Swiss girl, Milena Sutter, in Genoa on 6 May. It was alleged that he had hidden the body and tried to extort a ransom of 50 million Italian lire from the victim's father, an industrialist. He was also charged with indecency and indecent assault with violence on four women. 13. On 15 June 1973, after several months of hearings largely taken up by the evidence of 180 witnesses, the Genoa Assize Court sentenced him to two years and 15 days' imprisonment for offences relating to one of the four women (the time spent in detention being reckoned as part of the sentence). He was acquitted of the other crimes with which he was charged, in particular the abduction of Milena Sutter and its sequel, for lack of evidence; and he was accordingly released. 14. The prosecution appealed to the Genoa Assize Court of Appeal against the judgment (which ran to 166 pages). The hearing was set down for on 20 November 1974 but had to be adjourned, because the defence challenged the presiding judge, alleging that he had publicly stated his conviction that Mr. Bozano was guilty. The appeal proceedings commenced on 18 April 1975 after this challenge had been rejected by the Court of Cassation, but the accused applied for an adjournment. On the evidence of a medical certificate, he claimed that he was in hospital being treated for renal colic and was thus unable to appear. The court found that he was deliberately refusing to appear (contumace) and proceeded with the hearing. Thereupon the defence entered a fresh challenge in respect of the presiding judge and lodged an objection impugning the Assize Court of Appeal on grounds of bias; the challenge and the objection were dismissed by the Court of Cassation on 28 April. In the absence of the applicant, the proceedings then resumed before the Assize Court of Appeal, which refused to hear some of the defence witnesses. Considering that they could no longer perform their duties in these circumstances, the applicant's principal counsel withdrew from the case, and the defence was from then on conducted by a single lawyer who had been instructed not long before. On 22 May 1975, the Assize Court of Appeal, giving judgment in absentia, sentenced Mr. Bozano to life imprisonment (ergastolo) for the crimes relating to Milena Sutter and to four years' imprisonment for the other crimes; the court held that there were no extenuating circumstances. 15. On 25 March 1976, the Court of Cassation dismissed the applicant's appeal on points of law against this judgment, whereupon the public prosecutor's office in Genoa issued a committal order, on 30 March, and the Italian police circulated an international arrest warrant, two days later. 16. Mr. Bozano had in fact taken refuge in France, at first living on the Côte d'Azur and then in central France. He assumed the (false) identity of Bruno Bellegati Visconti - at any rate after a certain time. 17. On 26 January 1979, the French gendarmerie arrested him in the course of a routine check in the département of Creuse and on the same day he was taken into custody at Limoges Prison (Haute-Vienne) pending extradition proceedings. He was served with the document authorising his arrest and the documents produced in support of the extradition request, and the public prosecutor attached to at the Court of Appeal examined him under section 13(2) of the Extradition of Aliens Act of 10 March 1927 ("the 1927 Act"). On 31 January, Italy officially applied to France for his extradition under a bilateral treaty of 12 May 1870. 18. On 15 May 1979, the Indictment Division of the Limoges Court of Appeal, to which the case had been submitted in accordance with section 14 of the 1927 Act, ruled against extradition after hearing the public prosecutor, the applicant's counsel and the applicant himself. It found that the request was in order as far as the 1870 treaty and the 1927 Act were concerned but held that the Italian procedure for trial in absentia, which had been followed in this case by the Genoa Assize Court of Appeal, was incompatible with French public policy (ordre public), because even in respect of indictable offences (and not just of lesser ones) it was possible under that procedure to pass an enforceable sentence on an accused who had not appeared in person before the court, without the adversarial proceedings which formed the basis of French criminal procedure and without any provision for making a retrial obligatory. By virtue of section 17 of the 1927 Act, this negative ruling was final and binding on the French Government, which accordingly declined to extradite the applicant. 19. Mr. Bozano nonetheless remained in prison at Limoges, because he had been charged in France with fraud and with forgery and falsification of administrative documents and use thereof. On 24 August 1979, the investigating judge found that Bozano seemed to have acted merely as an executing agent and not to have planned and directed the frauds with which he was charged; the details which he had "preferred not to reveal" related to the circumstances at the beginning of his residence and not to the matters in issue; there were a considerable number of extentuating circumstances in connection with the making of the false identity documents; it was no longer necessary to keep him in prison in order to ascertain the truth, but on account of his "special administrative position" he had to be placed under judicial supervision. The investigating judge therefore ordered his release on bail of 15,000 francs and subject to certain conditions. The public prosecutor's office appealed against this order, but the Indictment Division of the Limoges Court of Appeal upheld it on 19 September 1979. Six days earlier, despite the prosecution's opposition, the investigating judge had decided that there were no grounds for keeping Mr. Bozano in custody. 20. The applicant was immediately released. He has claimed that on the next day, 20 September, he applied for a residence permit at Haute-Vienne Prefecture but was refused an acknowledgment of receipt of this application. The Government have stated that there is no trace of this application in the official archives, but they have not denied that it was made. At all events, Mr. Bozano's lawyer in Limoges wrote to the Prefect on 27 September in support of his client's course of action. For its part, the Italian consulate-general in Paris had stated on 13 July 1979 - without giving any reasons - that it was unable for the time being to provide the applicant with an identity document; this was in reply to a letter sent to it the previous day by another lawyer acting for the applicant, who was a member of the Paris Bar. 21. On 26 October 1979, the investigating judge issued a discharge order in respect of the fraud charge, an order terminating judicial supervision, and an order committing the applicant for trial at Limoges Criminal Court on charges of forging and falsifying administrative documents and using false identity documents (contrary to Articles 153 and 261 of the Criminal Code). 22. The account given hereafter in paragraphs 23, 25 and 26 is based mainly on information and documents supplied to the Commission and, subsequently, to the Court by Mr. Bozano's lawyers. The Government have not formally challenged its accuracy, but they have expressed reservations in respect of one or two matters; they acknowledge, however, that they cannot be certain or adduce any evidence to the contrary. 23. On the evening of 26 October 1979, at about 8.30 p.m., three plain-clothes policemen, at least one of whom was armed, stopped Mr. Bozano as he was returning home after an interview with his Limoges lawyer and ordered him to follow them. When he protested, they seized him and forced him to get into an unmarked car. He was handcuffed and driven to Limoges police headquarters. There four other men arrived shortly afterwards who said they had come specially from Paris; they served him with a deportation order (without giving him a copy). 24. This order, which had been made more than a month earlier - on 17 September 1979 - by the Minister of the Interior at the instance of the Prefect of Haute-Vienne and was signed by the Director of Regulations, read as follows: "THE MINISTER OF THE INTERIOR Having regard to article 23 of the Aliens (Conditions of Entry and Residence) Ordinance of 2 November 1945, Having regard to the Decree of 18 March 1946, Having regard to information obtained concerning Lorenzo BOZANO, born on 3 October 1945 in GENOA (Italy); Deeming that the presence of the above-mentioned alien on French territory is likely to jeopardise public order (ordre public), BY THIS ORDER REQUIRES: 1. the above-named to leave French territory; 2. the Prefects to execute this order. Paris, 17 SEPTEMBER 1979." 25. The applicant refused to sign a police report stating that he complied with this decision of his own free will. On the contrary, he emphatically opposed deportation and demanded to be brought before the Appeals Board provided for in article 25 of the Aliens (Conditions of Entry and Residence) Ordinance of 2 November 1945. He was told that this was out of the question and that he was going to be taken at once to Switzerland (and not to the Spanish border, which was the nearest frontier). Accordingly, without first being ordered to leave France for a country of his choice or being allowed to inform his wife or his lawyer, he was forced to get into an unmarked BMW and sit, still handcuffed, between two police officers. At about 10 p.m. the car left for Clermont-Ferrand, preceded by a police car which led the way. It reached the frontier near Annemasse on Saturday 27 October 1979 in the early hours of the morning. At first it was unable to cross; after a long telephone conversation between the officer in charge of the French policemen and the Swiss authorities, it proceeded to the French customs post at Moillesulaz. 26. After a further telephone conversation, there appeared an unmarked Opel with a Swiss number plate, and a Swiss policeman got out. He put other handcuffs on Mr. Bozano, who was made to sit on the back seat between this policeman and a French one. The Opel entered Switzerland at about 8.00 a.m., escorted by the BMW with the other three French policemen aboard. The two vehicles drove to the police station in the Boulevard Carl-Vogt in Geneva. The applicant, who had no identity papers, was informed at about 11.45 a.m. that Italy was requesting his extradition. He was then provisionally taken into custody at Champ-Dollon Prison, as had been requested that same day by the Federal Police Office when it informed the Geneva police that the diplomatic request would be arriving shortly. As early as 14 September and 24 October 1979, Interpol Rome had telexed several States, including Switzerland, to inform them that Mr. Bozano would shortly be deported from France. The documents later supplied by Italy in support of its request were dated 28 October 1979, a Sunday. 27. In 1976, Italy, to which Switzerland is bound by the European Convention on Extradition of 13 December 1957, had requested Switzerland to extradite the applicant, and the latter's name had accordingly been recorded in the Swiss Police Gazette (Moniteur suisse de police) of 5 April 1976 as being the subject of a "warrant for arrest pending extradition proceedings". Mr. Bozano was extradited to Italy on 18 June 1980 after the Swiss Federal Court had rejected his objection on 13 June. He is currently serving his sentence in Porto Azzurro Prison on the island of Elba, as Italian law - unlike the French system - makes no provision for obligatory retrial after proceedings in absentia (cf. Article 639 of the French Code of Criminal Procedure). It appears that he has never ceased to claim that he is innocent of the appalling crime of which he was convicted, but unless he is given a retrial (revisione) or a pardon, he will not be eligible for release (on parole) until May 2008. 28. On 11 and 26 December 1979, Mr. Bozano's lawyer had had recourse to two remedies in France. 29. In the first place, they summoned the Minister of the Interior to appear in urgent proceedings before the presiding judge of the Paris tribunal de grande instance on 17 December. According to them, the "operation" carried out on the night of 26-27 October 1979 had three major defects, any one of which was sufficient to classify it as arbitrary and thus constituting a flagrantly unlawful act (voie de fait). Mr. Bozano's "brutal arrest" was obviously a vital stage in the execution of the deportation order but could not be justified by the order because it had preceded notification of the order. The authorities could not prove that the execution of the administrative act had met with definite resistance or at least obvious unwillingness to comply: they had quite simply not left the applicant "any time to do anything at all", and in any case it would have been in his interests to comply voluntarily so as to be able to choose the country in which he would take refuge. Finally and most importantly, the executive had no automatic right of enforcement in this matter. Furthermore, there was the flagrant unlawfulness of the order itself. It was contrary to the decisions to release the applicant and to discharge the judicial supervision order that had been taken by the investigating judicial authorities on 19 September and 26 October 1979, and to the negative ruling of 15 May 1979 by the Indictment Division of the Limoges Court of Appeal (see paragraph 18 above); and in choosing Switzerland out of five neighbouring countries, against the applicant's will, the authorities knew that they were handing him over to the European State most likely to extradite him to Italy, owing to the existence of an extradition agreement between Italy and Switzerland and the nationality of the murdered girl. Mr. Bozano's lawyers further pointed out that the matter was urgent because the Swiss Federal Court was about to take a decision on the Italian extradition request (see paragraph 27 above), and that their client had been improperly removed from the jurisdiction of the French courts, seeing that the investigating judge had committed him for trial at Limoges Criminal Court on a charge of using false identity documents (see paragraph 21 above). They therefore sought an injunction from the presiding judge of the Paris tribunal de grande instance requiring the Minister of the Interior to apply to the appropriate Swiss authority, within eight days of the interim order's being made, for the return of their client. 30. In his submissions of 17 December 1979, the Minister pointed out that section 13 of the Act of 16/24 August 1790 forbade any interference by the ordinary courts with administrative acts. He drew the inference that the application must be dismissed and the applicant left to take proceedings in the proper courts if he so desired. The Paris Commissioner of Police likewise entered a plea in bar alleging want of jurisdiction, which the procureur de la République (public prosecutor) argued at the hearing, submitting that the parties should be referred to the administrative court. He too based his argument on the 1790 Act and, in addition, the Act of 16 fructidor of Year III, which forbids the courts to deal with administrative acts of any kind whatsoever. There was nothing to prove that the deportation order complained of and its enforcement had amounted to a flagrantly unlawful act, that is to say, that they were manifestly incapable of being related to the application of a statute or regulations. In particular, the investigating judicial authorities' order for the applicant's release and their decision to discharge the judicial supervision order did not establish that Mr. Bozano's presence on the national territory did not constitute a threat to public order. Furthermore, it was in the nature of deportation to be effected by coercion if need be (Court of Cassation, Criminal Division, 20 February 1979, Batchono - Juris-Classeur périodique 1979-19207). As to the negative ruling by the Indictment Division of the Limoges Court of Appeal on 15 May 1979, it did not forbid taking Mr. Bozano to the Swiss frontier, as the Swiss Confederation had agreed to accept him. 31. On 14 January 1980, the presiding judge of the Paris tribunal de grande instance made an order stating that there were no grounds for hearing the case on an urgent application because the application, "as it [put] relations between States in issue, [was] not within the jurisdiction of the judge competent to hear urgent applications in the ordinary courts". This decision was preceded by reasons which read as follows (translation from French): "The various events between Bozano's being apprehended and his being handed over to the Swiss police disclose manifest and very serious irregularities both from the point of view of French public policy (ordre public) and with regard to the rules resulting from application of Article 48 of the Treaty of Rome. Moreover, it is surprising that precisely the Swiss border was chosen as the place of deportation although the Spanish border is nearer Limoges. Lastly, it may be noted that the courts have not been given an opportunity of making a finding as to the possible infringements of the deportation order issued against him, because as soon as the order was served on him, Bozano was handed over to the Swiss police, despite his protests. The executive thus itself implemented its own decision. It therefore appears that this operation consisted, not in a straightforward expulsion on the basis of the deportation order, but in a prearranged handing over to the Swiss police ..." 32. The applicant's lawyers considered that there was no point in appealing. It should be noted in this connection that the Jurisdiction Disputes Court (Tribunal des conflits) has held that even an unlawful decision to deport does not amount to a flagrantly unlawful act and that consequently only the administrative courts have jurisdiction in the matter (Préfet du Rhône c. Tribunal de grande instance de Lyon and Fentrouci c. Ministre de l'Intérieur, 3 December 1979, Recueil Lebon, 1979, p. 579). 33. On 26 December 1979, the applicant's legal advisers had applied, secondly, to the Limoges Administrative Court, to have the deportation order of 17 September set aside. They argued in substance that this had been made by an unauthorised entity as it did not bear the Minister of the Interior's personal signature. It was "bad for error of law" to the extent that it was based on Mr. Bozano's previous conviction, because the Indictment Division of the Limoges Court of Appeal had rejected as being contrary to French public policy the conviction in absentia by the Genoa Assize Court of Appeal (see paragraph 18 above). There had also been an abuse of powers, since the matter had been one, not of requiring Mr. Bozano to leave French territory, but of handing him over to the country which was more likely than any other to extradite him to Italy; and a manifest error of judgment, inasmuch as the order complained of was based on the applicant's behaviour in France - the use of a false document had seemed to him to be the only way of escaping prosecution for a crime of which he held he was innocent, and the investigating judge had found that there were a considerable number of extenuating circumstances in relation to the offence (see paragraph 19 above). The authorities should have looked at the whole case to determine whether Mr. Bozano's presence amounted to a threat to public order. The order complained of had not complied with the provisions of Community law (Article 48 of the Treaty of Rome and EEC Directive 64/221). Furthermore, the authorities had disregarded all the formal requirements of Directive 64/221 and the Decree of 5 January 1970: Mr. Bozano had not been served with a refusal to issue a residence permit, had not been able to submit his observations to the Deportation Board, had not been informed of the reasons of public policy on which the administrative decision was based, and had not been given a reasonable period to leave French territory. Only urgency could have absolved the executive from its duty to comply with these mandatory rules, but there had been no such urgency in the instant case nor had it been relied on at any time. 34. Initially (27 May 1980), the Minister of the Interior opposed this argument, contending, inter alia, that the circumstances in which an administrative decision was executed did not affect the lawfulness of the decision; but in further pleadings, sent by telegram on 8 December 1981, the Minister of the Interior and for Decentralisation stated that he desired to leave the matter to the discretion of the court. 35. The court gave judgment on 22 December 1981. Without ruling on the other grounds, it held that the Minister of the Interior had committed "a manifest error of judgment" and the administrative authorities an "abuse of powers". On the first point the judgment read as follows (translation from French): "The Minister ... refers to the applicant's use of false administrative documents and to his behaviour in Italy; The fact of having used false identity documents to enter France and reside there cannot of itself, in the absence of any aggravating circumstances, be considered as amounting to a threat to public order; It appears from the documents on the file ... that the only factor to which regard was had in respect of the applicant's behaviour in Italy was a criminal conviction and sentence in absentia ...; in the absence of any truly adversarial proceedings, the very serious offence of which Mr. Bozano was accused, and which he has always denied, cannot be regarded as having been adequately proved ... " The finding that there had been an abuse of powers was based on the following circumstances (translation from French): "Whereas the haste with which the impugned decision was enforced, when the individual concerned had not even indicated his refusal to comply, and the choice of the Swiss border which was imposed on the individual clearly show the real reason behind the decision: in reality the executive sought, not to expel the applicant from French territory, but to hand him over to the Italian authorities via the Swiss authorities, with whom Italy had an extradition agreement; the executive was therefore seeking to circumvent the competent judicial authority's negative ruling which was binding on the French Government; ... the impugned decision was [therefore] an abuse of powers ..." The court accordingly quashed the deportation order. The Minister of the Interior and for Decentralisation did not appeal. 36. The applicant's legal advisers had considered it unnecessary to couple their application for the order to be set aside with an application for a stay of its execution. Had they done so, such an application would have had to be made - at that time - to the Conseil d'Etat and not to Limoges Administrative Court. 37. According to the information provided by the Government, Mr. Bozano was not summoned to appear at Limoges Criminal Court on the charges of forging and falsifying administrative documents and uttering false identity documents (see paragraph 21 above). The prosecuting authorities considered that the nature of the offences charged did not justify continuing the proceedings in view of the fact that the accused had been deported.