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European Court of Human Rights; France: Applicant’s Police Custody Rights Violated as Public Prosecutor Not Competent Legal Authority Under Article 5 § 3

(Dec. 13, 2010) On November 23, 2010, in the case of Moulin v. France, the European Court of Human Rights (ECHR) found that France violated article 5, section 3 (right to liberty and security), of the European Convention on Human Rights, on the grounds that the public prosecutor cannot be regarded as a competent legal authority for the purpose of that section. The section provides: “[e]veryone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power.” (European Court of Human Rights, Moulin V. France, Requête 37104/06 (Nov. 23, 2010),

On April 13, 2005, the applicant Ms. France Moulin, an attorney, was placed in police custody on suspicion of breaching confidentiality in a drug-trafficking investigation. On April 15, she was brought before a public prosecutor who ordered her transfer to prison, with the intention of having her brought before an investigating judge. On April 18, five days after her arrest, she appeared before an investigating judge who formally placed her under investigation and she was remanded to custody by the judge of liberties and detention. (Id.)

It has been the constant jurisprudence of the ECHR that police custody for over four days and six hours without any judicial control is a breach of article 5, section 3. The issue at hand was whether the applicant's appearance before the public prosecutor two days after her arrest met the requirement of article 5, section 3, and whether the public prosecutor could be regarded as “a judge or other officer authorized by law to exercise judicial power.” (Id.)

The ECHR noted that different rules govern sitting judges and public prosecutors in France. The latter are in particular under “the authority of the Minister of Justice, who is a member of the government, and therefore, the executive branch.” The Court mentioned that it was aware that “the ties of dependency between the Minister of Justice and the prosecuting authorities in France were the subject of a national debate” and that it did not wish to take a stance in such debate. (Id.)

The ECHR further stated that it was examining the case solely in terms of article 5, section 3. It reiterated that the characteristics that “a judge or other officer authorized by law to exercise judicial power” must possess impartiality and independence. In addition, he/she must be precluded from intervening subsequently against the applicant in the criminal proceedings. This is not the case in France. (Id.)

Accordingly, the ECHR found that the public prosecutor did not offer the guarantees of independence required by article 5, section 3, in order to be described as a “judge or other officer authorized by law to exercise judicial power” within the meaning of that provision. It found that France violated the rights of the applicant in keeping her in police custody for five days before bringing her to a competent legal authority. (Id.)

The judgment is not final and the French Ministry of Justice plans to appeal. If confirmed, the decision may have an impact on the reform proposed by French President Nicolas Sarkozy, who would like to eliminate investigating judges who are independent and entrust all criminal investigations to public prosecutors. The reform is very controversial and has been temporarily set aside. (Thomas Vampouille, L'indépendance du procureur en France remise en cause, LE FIGARO.FR (Nov. 23, 2010),