Article 47 - Right to an effective remedy and to a fair trial
Article 48 - Presumption of innocence and right of defence
Key facts of the case:
On 26 November 2013 Mr Naqeeb X. was placed in police custody. This measure was extended twice by the examining magistrate. On 30 November 2013 Mr Naqeeb X. was put under investigation for the laundering of proceeds of criminal offences, organized fraud, and criminal conspiracy.On 24 April 2014 Mr Naqeeb X. filed a request to halt the legal procedure.The investigating chamber of the Douai Appeal Court in its judgment of 26 September 2014 rejected the request to cancel parts of the procedure.
Mr Naqeeb X. argued before the Court of cassation that the right to a lawyer during police custody implies access to the all the documents, in order to be effective at this stage and to allow for the organization of a defence and preparation for questioning. The examining magistrate (juge d’instruction) being at the origin of the arrest and the detention and who is charged with conducting the investigation, and is therefore the person who rules on the extension of police custody and assesses the legality and necessity of this, in addition without the assistance of lawyer, constitutes a violation of Article 5 § 3 and 6 of the European Convention on Human Rights, as well as the preliminary article of the Code of Criminal Procedure’.
Outcome of the case:
The Court of Cassation rejected the appeal, dismissing the pleas.
According to the investigating chamber of the Douai Court of Appeal, the exhaustive list of documents that the lawyer for a person in custody may consult is not inconsistent with the provisions of the Charter of Fundamental Rights and the European Convention on Human Rights. The restriction on the communication of the entire file is not, at this stage of the proceedings, likely to deprive the person of a real and effective right to a fair trial or to undermine the rights of defence, access to all parts is guaranteed before the ruling court and the judgment. The investigating judge, who is not the prosecuting party, presents safeguards of independence in respect of the executive and the parties required by article 5 of the European Convention on Human Rights
The Court of Cassation confirmed the ruling of the investigating chamber of the Douai Court of Appeal, however, in referring only to the European Convention on Human Rights.
On the fifth ground of the appeal, alleging an infringement of articles 6 and 5 of the European Convention on Human Rights, and articles 47 and 48 of the Charter of Fundamental Rights, the rights of the defence, and of article 593 of the Code of Criminal Procedure, lack of grounds, lack of a legal basis;
In that the judgment dismissed the application for annulment of the measure of custody and subsequent acts;
On the grounds that it is not disputed that the applicant's custody was conducted in compliance with the laws in force on the day of their implementation; that section 63(4)(1) of the Code of Criminal Procedure, which lists exhaustively the documents which a detainee’s lawyer may consult, is not incompatible with the treaty provisions invoked. At this stage of the proceedings, the restriction on the communication of the entire file is not likely to deprive the person of a real and effective right to a fair trial or to undermine the rights of defence. Access to all parts is guaranteed before the ruling court and the judgment. Finally, the investigating judge, who is not the prosecuting party, presents safeguards of independence in respect of the executive and the parties required by article 5 of the European Convention on Human Rights;
1) the right to a lawyer during police custody implies, to be effective at this stage, and to allow for the organization of a defence and preparation for questioning, access to the all the documents; that in dismissing annulment on the grounds of internal provisions non-compliant to this requirement, without stating that the temporary inability to access the whole file would, in this particular case, be justified by a serious threat to the life or fundamental rights of a third party, or strictly necessary to safeguard the public interest, the investigating chamber violated Articles 6(1) and 6(3) of the European Convention on Human Rights;
2) the examining magistrate being at the origin of the arrest and the detention and who is charged with conducting the investigation, and is therefore the person who rules on the extension of police custody and assesses the legality and necessity of this, in addition without the assistance of lawyer, constitutes a violation of Article 5(3) and 6 of the European Convention on Human Rights, as well as the preliminary article of the Code of Criminal Procedure’;
In refusing, for the reasons given, to grant the application for annulment based on the alleged irregularity of the police custody of Mr X ., the investigating chamber justified its decision without breaching the treaty provisions invoked;
That, on the one hand, Article 63(4)(1) of the Code of Criminal Procedure then in force, in that it lists exhaustively the documents which counsel for the detainee is entitled to consult, is not contrary to Article 6(3) of the European Convention on Human Rights, since the lack of communication of the entire file at this stage of the procedure does not deprive an effective and actual right to a fair trial from the defendant, whose access to all the documents is guaranteed before the investigating courts and the ruling, and the grievance, in that it refers to European directive 2012/13/EU for which the implementation deadline had not expired at the date on which the applicant was placed in police custody, is inadmissible;
That, secondly, the examining magistrate rules in impartiality, within the meaning of the terms of provisions of the convention cited, on the legality and the cogency of the extensions of police custody, and respect of Article 6 of the European Convention on Human Rights is ensured by the opportunity, for the applicant, to discuss in front of the jurisdiction of judgement the value of the declarations thus made.
